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AN ACT 

TO DECLARE THE COMPILATION, COLLECTION AND REVISION OF 
THE GENERAL STATUTE LAW OF THE STATE AS REPORTED BY 
THE CODE COMMISSIONER PURSUANT TO SECTION 5, ARTICLE VI, 
OF THE CONSTITUTION OF 1895, THE CODE OF LAWS FOR 1942, AND 
THE ONLY GENERAL STATUTORY LAW OF THE STATE. 

BE IT ENACTED by the General Assembly of the State of South Carolina: 

SECTION 1: That the Report of the Code Commissioner made to the 
General Assembly for the year 1941, pursuant to requirements of Section 
5, Article VI of the Constitution of 1895, and with such addition of the gen- 
eral statutes of 1941, and with such eliminations, corrections, general make 
up and arrangement made under and by virtue of the Act No.1015, of the 
General Assembly, approved the 24th day of July, 1940, in accordance with 
the Report of the Code Commissioner and Committee on Statutory Laws 
to the General Assembly for the year 1942 hereto attached, be, and the 
same is hereby, adopted as the Code of Laws of South Carolina, 1942, and 
said Code is hereby declared to be the only general statotory law of the 
State, on the 13th day of January, 1942. 

SECTION 2: This Act shall take effect immediately upon its approval by 
the Governor. 



Approved 26 day of September, 1942 University o^uih Carolina 




Coleman Karesh 
Law Library 



Digitized by the Internet Archive 

in 2011 with funding from 

LYRASIS Members and Sloan Foundation 



http://www.archive.org/details/codeoflawsofsout01unse 



CODE OF LAWS 

OF 

SOUTH CAROLINA 

1942 

IN FIVE VOLUMES 



Prepared, edited, annotated, and printed under the supervision 
and direction of the Code Commissioner, with the assist- 
ance, in an advisory capacity, of the Committee on 
Statutory Laws of the General Assembly - 
of South Carolina 



VOLUME 1 



Code of Civil Procedure 

Code of Criminal Procedure 

Criminal Code 

Constitution of the United States of 1787 

Constitution of the State of South Carolina, 1895 

Rules of Court for the State Courts 



Jacobs Press 

Clinton, S. C. 

1942 



Copyright 1942 

BY 

The State of South Carolina 



COLEMAN KAPESH LAW LIBRARY 
University of South Carolina 



Preface 

This Code, in 5 volumes, has been prepared, edited, annotated, and 
printed under the supervision and direction of the Code Commissioner, as 
provided by Article VI, Section 5, of the Constitution of South Carolina, 
1895, and Act 1015 of the 1940 Acts and Joint Resolutions; and in compli- 
ance with Section 2117 of the Code of Laws of South Carolina, 1932, as 
amended by the said Act No. 1015 of the 1940 Acts and Joint Resolutions. 
The Committee on Statutory Laws of the General Assembly of South Caro- 
lina has met with the Code Commissioner frequently, to check on his work, 
and in an advisory capacity. 

In order to retain as many as possible of the 1932 Code section numbers 
and since some of the sections were repealed, or became obsolete, the 
section numbers in this code do not always run consecutively. 

Table showing disposition of sections in 1932 Code may be found in 
volume 5 after general index. 

Rules and regulations issued under authority of general and permanent 
laws are published herein as required by act 132 of 1937 Acts and Joint 
Resolutions. The rules and regulations herein were in effect May 28, 1942. 

Mr. Carlisle Roberts of Columbia, S. C, using the annotations in the 1932 
Code as a basis prepared the annotations for this code. The cases annotated 
in this code come from volume 26 to part of volume 197 of South Carolina 
Reports; volume 1 thru volume 200 of South Eastern Reporter; volume 1 
to page 360 of volume 15 of South Eastern Reporter, Second Series; volume 
1 thru volume 300 of Federal Reports; volume 1 to page 640 of volume 120 
of Federal Reporter, Second Series; volume 1 to page 176 of volume 39 of 
Federal Supplement; volume 1 thru volume 30 of Federal Cases; and 
volume 1 to page 382 of volume 312 of United States Supreme Court Re- 
ports. 

The Michie Company of Charlottesville, Virginia, under the direction of 
Mr. A. Hewson Michie, using the index in the 1932 Code as a basis prepared 
the index for this code. 

We acknowledge the cooperation and suggestions of members of bar and 
bench of this State and the several state departments in the presentation of 
this work. 

Acknowledgment is hereby made to the West Publishing Company, of St. 
Paul, Minnesota, for a license permitting the use of the syllabi and digest 
paragraphs in the South Eastern Reporter, Federal Reporter and Federal 
Supplement in annotating this new code. The use of these syllabi or digest 



paragraphs herein does not permit the re-use of same by any third party 
without the consent and license of the original copyright proprietor, the 
West Publishing Company. We also wish to make acknowledgement to 
the Frank Sheppard Company for permission to use their South Carolina 
Citations in tracing citations to the selected case series. 

W. Brantley Harvey, Chairman, 
P. H. McEachin, Vice-Chairman, 
James B. Pruitt, 
Calhoun Thomas, 
Marion F. Winter, 
M. H. Mims, 

Committee on Statutory Laws. 

Furman R. Gressette, 
Code Commissioner. 



Table of Contents 



CODE OF CIVIL PROCEDURE 



Definitions and Preliminary Matter 



Sec. 



PART I 
COURTS OF JUSTICE AND THEIR JURISDICTION 



TITLE 1 
Designation of Courts of Justice 



The Courts 


Chapter 


1. 


Article 


1. 


Article 


2. 


Chapter 


2. 


Article 


1. 


Article 


2. 


Chapter 


3. 


Article 


1. 


Article 


2. 


Article 


3. 


Article 


4. 


Article 


5. 


Article 


6. 


Chapter 


4. 


Chapter 


4- 


Article 


1. 


Chapter 


5. 


Chapter 


6. 


Chapter 


7. 


Chapter 


8. 


Chapter 


9. 



TITLE 2 

and Judicial Officers 

The Supreme Court 

The Supreme Court and its Officers 

The Supreme Court and 'its Jurisdiction 

The Circuit Courts 

Circuit Courts and Judges 

Circuits and Terms of Courts 

County Courts 

General Provisions 

The Civil Court of Florence 



County Court in and for Greenville County- 
County Court of Orangeburg 

County Court of Richland County. 



County Court of Spartanburg County 

Probate Court 

A. Courts of Domestic Relations 

Courts of Domestic Relations in Counties with City 

over 70,000 

Courts of Magistrates 

The Civil and Criminal Court of Charleston 

The City Court and the Police Court of Charleston... 

Attorneys, Solicitors and Counselors 

General Provisions Respecting the Administration of 

Justice 



11 

11 

11 

26 

33 

33 

50 

75 

75 

102 

118 

141 

164 

182 

205 

256-1 

256-1 
257 
276 
289 
312 

334 



PART II 
CIVIL ACTIONS 



TITLE 3 



General Provisions 

Chapter 10. General Provisions. 



352 
352 



TITLE 4 Sec. 

Time of Commencing Civil Actions 355-1 

Chapter 11. General Provisions 355-1 

Chapter 12. Actions for the Recovery of Real Property 371 

Chapter 13. Actions Other than for Recovery of Realty 386 

TITLE 4-A 
Actions for Services against Counties over 85,000 396-1 

TITLE 5 

Parties to Civil Actions 397 

Chapter 14. Parties to Civil Action Generally.. 397 

Chapter 15. Wrongful Death Actions and Survival of Actions 410 



Place of Trial of Civil Actions. 



TITLE 6 



420 



TITLE 7 

Manner of Commencing Civil Actions 

Chapter 16. Summons and Service 

Chapter 17. Notices, Filing and Service of Papers. 



427 
427 
443 



TITLE 8 



Pleadings in Civil Actions 

Chapter 18. The Complaint. 
The Demurrer... 

The Answer 

The Reply— 



Chapter 
Chapter 
Chapter 
Chapter 
Chapter 



19. 
20. 
21. 
22. 
23. 



General Rules of Pleading 

Amendments and Relief in Case of Mistake. 



454 
454 
457 
467 
471 
474 
490 



TITLE 9 
Provisional Remedies in Civil Actions..... 



Chapter 


24. 


Chapter 


25. 


Chapter 


26. 


Chapter 


27. 


Article 


1. 


Article 


2. 


Chapter 


28. 


Trial and Ju 


Chapter 


29. 


Chapter 


30. 


Chapter 


31. 


Article 


1. 


Article 


2. 


Article 


3. 


Article 


4. 


Article 


5. 


Chapter 


32. 


Chapter 


33. 


Chapter 


34. 



Bail 



Arrest and 

Attachment 

Claim and Delivery of Personal Property- 
Injunction 

General Provisions 

Injunctions to Abate Certain Nuisances 



Receivership and Other Provisional Remedies.. 

TITLE 10 
Judgment in Civil Actions 



Judgment by Default or upon Frivolous Pleading 
Issues and Mode of Tpial .... 
Trial by Jury. 



General and Special Verdicts 

Drawing and Summoning Jurors 

Qualification, Exemption, Empaneling and Pay of 

Jurors 

Obj ection to Jurors 

Miscellaneous Provisions 

Trial by the Court 

Trial by Referee 

Judgments 



499 
499 
527 
552 
565 
565 
575 
584 



585* 
585 
588 
599 
599 
607 

627 
637 
643 
648 
652 
657 



Chapter 


36. 


Chapter 


37. 


Chapter 


38. 


Chapter 


39. 


Chapter 


40. 


Chapter 


41. 


Article 


1. 


Article 


2. 


Article 


3. 


Chapter 


42. 



TITLE 11 Sec. 

Trial and Judgments, cont'd 665 

Witnesses and Evidence 665 

Chapter 35. Offer to Compromise 665 

Agreed Case, 668 

Confession of Judgment 670 

Admission or Inspection of Writings 673 

Examination of Parties 674 

Attendance of Witnesses 683 

Examination of Witnesses 691 

General Provisions 691 

Examination by Commission 693 

Examination before Clerk and Depositions De Bene 

Esse 703 

Provisions Respecting Methods of Proof 709 

TITLE 12 

Executions and Proceedings Supplementary to Executions 737 

Chapter 43. Executions 737 

Chapter 44. Proceedings Supplementary to Executions 746 

TITLE 13 

Costs in Civil Actions 756 

TITLE 14 

Appeals in Civil Actions 771 

Chapter 45. Appeals in General 771 

Chapter 46. Appeals to the Supreme Court 780 

Chapter 47. Appeals to the Circuit Court from an Inferior Court 794 

TITLE 15 

Miscellaneous Provisions Respecting Civil Actions 810 

Chapter 48. Proceedings against Joint Debtors 810 

Chapter 49. Motions and Orders 816 

Chapter 50. Computation of Time 821 

Chapter 51. Miscellaneous Provisions 823 

TITLE 16 

Actions in Particular Cases and Extraordinary Remedies 826 

Chapter 52. Actions against Foreign Corporations— 826 

Chapter 53. Substitutes for Scire Facias, Quo Warranto, and In- 
formations in the Nature of Quo Warranto 827 

Chapter 54. The Writ of Mandamus 847 

TITLE 17 

Proceedings for Relief of Persons Arrested in Civil Actions 851 

TITLE 18 

Remedies Relating to Real Property 870 

Chapter 55. Remedies against Guardians, Disseizors, etc 870 

Chapter 56. Forcible Entry and Detainer, and Ejectment of 

Trespassers 885 

Article 1. Forcible Entry and Detainer 885 

Article 2. Summary Ejectment of Trespassers 894 

TITLE 19 

Definitions and General Principles 897 



CODE OF CRIMINAL PROCEDURE 



Chapter 


57. 


Chapter 


58. 


Chapter 


59. 


Article 


1. 


Article 


2. 


Article 


3. 


Article 


4. 


Article 


5. 


Article 


6. 


Article 


7. 


Article 


8. 


Chapter 


60. 


Chapter 


61. 


Chapter 


62. 


Chapter 


63. 


Chapter 


64. 


Chapter 


65. 


Chapter 


66. 


Chapter 


67. 



TITLE 20 
CRIMINAL PROCEDURE 

Arrest, Examination, Commitment and Bail,. 
Jurisdiction of Magistrates and Their Courts.. 



Sec. 

907 

922 

Criminal Proceedings in Municipalities—. 952 



General Provisions. 

Cities between 20,000 and 50,000.... 

Cities of 1,500 and not over 20,000. 

Towns under 1,000 

Recorder, Bennettsville 

Recorder's Court for Columbia 

Municipal Court in Spartanburg.... 
Recorder, Pageland. 



Proceedings in Courts of General Sessions 

Procedure Against Corporations 

Rights of Persons Accused 

Indictments and Trials 

Appeals and New Trials 

Judgment and Execution 

The Writ of Habeas Corpus 

Inquests on the Dead 



952 

959 

968 

969 

970 

971 

972 

972-6 

973 

989 

993 

1000 

1024 

1034 

1047 

1067 



CRIMINAL CODE 



Chapter 


67-A 


Chapter 


68. 


Chapter 


69. 


Chapter 


70. 


Chapter 


71. 


Chapter 


72. 


Chapter 


73. 


Chapter 


74. 


Chapter 


76. 


Chapter 


77. 


Chapter 


78. 


Chapter 


79. 


Chapter 


80. 


Chapter 


81. 


Chapter 


82. 


Chapter 


83. 


Chapter 


84. 


Article 


1. 


Article 


2. 


Article 


3. 



TITLE 21 
FELONIES AND MISDEMEANORS 
. Offenses against the Government. 



.1100-1 



Offenses against the Person 1101 

Offenses against Property 1132 

Trade Regulations and Offenses Against Public 

Policy 1231 

Offenses against the Public Peace 1380 

Offenses against Public Justice 1397 

Offenses against Morality and Decency 1432 

Offenses against Public Health 1465 

Offenses by Certain Officers 1508 

Transportation of, and Cruelty to, Animals 1593 

Bridges, Ferries, Highways and Rules of the Road 1604 
Offenses by and against Railroad Companies, their 

Agents and Employees 1692 

Offenses Relating to Assessment and Collection of 

Taxes 1718 

Bastardy and Vagrancy 1726 

Desecration of the Sabbath and of Religious Worship 1732 

Gambling 1738 

Fish and Game 1750 

General Provisions 1750 

Protection of Fish, Oysters, etc 1767 

Protection of Game - — 1777 



Article 4. 



Chapter 
Article 


86. 
1. 


Article 


2. 


Article 


3. 


Chapter 
Chapter 


88. 
89. 



Sec. 

Protection of Fish, Game, etc., in Game Zones and 

Certain Other Subdivisions 1789 

Intoxicating Liquors 1829 

Manufacture, Sale, Possession, Transportation and 

Use 1829 

Provisions Relating to Sale of Alcohol, Nuisances, 

Seizures, etc., of Contrabands 1864 

When Unlawful Sell, Buy, Use, Transport and Pos- 
sess Alcoholic Liquors 1910 

Offenses Relating to Sailors and Immigrants 1924 

Accessories and Aiders to Felonies 1936 



TITLE 22 

PRISONS AND IMPRISONMENT 

Chapter 90. Jails and Prisoners 1938 

Chapter 91. State Penitentiary 1961 

Chapter 92. Correctional Institutions 2014 

Article 1. South Carolina Industrial School 2014 

Article 2. John G. Richards Industrial Training School for 

Negro Boys 2021 

Article 3. The State Industrial School for Girls 2024 



CONSTITUTIONS 

Constitution of the United States of 1787 1103 

Constitution of the State of South Carolina, 1895 1159 



COURT RULES 

Rules of Practice for the Courts of Probate of South Carolina 1395 

Rules of Practice of the Circuit Courts of South Carolina 1399 

Rules of the Supreme Court of South Carolina 1432 



CODE OF CIVIL PROCEDURE 



Definitions and Preliminary Matter 



1. Division of remedies. 

2. Action. 

3. Special proceeding. 

4. Division of actions. 



5. Criminal action. 

6. Civil action. 

7. No merger of civil and criminal rem- 
edies. 

8. Division of Code of Procedure. 



§ 1. Division of remedies. — Remedies in the courts of justice are divided 
into: 1. Actions. 2. Special proceedings. 
1932 Code, § 1; Civ. P. '22, § 1; Civ. P. '12, § 1; Civ. P. '02, § 1; 1870 (14) 423, § 1. 



Editor's note. — It might be pointed out 
at this place that the Code of Procedure 
has made no material changes in the pri- 
mary rights of parties, or in the different 
causes of action. The procedure Code 
has only changed the mode by which re- 
dress is reached and applied. See Ander- 
son v. Lynch, 37 S. C. 575, 16 S. E. 773. 



The changes effected in the mode of re- 
dress relate to pleading and its incidents. 
Price v. Brown, 4 S. C. 144. It would 
serve no good purpose to place under this 
section a discussion of the cases pertain- 
ing to the subject of pleading. That sub- 
ject is treated fully elsewhere in the 
Code. 



§ 2. Definition of an action. — An action is an ordinary proceeding in a 
court of justice, by which a party prosecutes another party for the enforce- 
ment or protection of a right, the redress or prevention of a wrong, or the 
punishment of a public offense. 
1932 Code, § 2; Civ. P. '22, § 2; Civ. P. '12, § 2; Civ. P. '02, § 1870; (14) 423, § 2. 



As to commencement of actions, see 
§ 357 and note thereto. 

Editor's note. — For a statement of the 
distinction between, and the method of 
applying the remedy for a wrong, and the 
cause of action, or wrong itself, and the 
remedy or object of the action, see Bliss 
on Code Pleading, 3 Ed. § 2. 

In general. — The definition of the term 
"action" as set out in this section has 
been substantially adopted in all codes 
of this State. Henderson v. Hyatt, 8 S. 
C. 112. 

Nothing constitutes a cause of action 
under the Code which did not constitute 
a cause of action at law or suit in equity, 
prior to the adoption of the Code. South- 
ern Porcelain Co. v. Thew, 5 S. C. 5; 
Parker v. Jacobs, 14 S. C. 112. 

Illustrations of proceedings regarded 
as "actions." — This section has often 
served as a guide-post for the courts 
when called upon to determine whether 
the particular procedure adopted by a 
litigant can be considered an "action" 
within the meaning of a specific statute. 
We place below a few of the illustrative 
cases wherein the definition contained 
in this section has been applied. — Ed. 
Note. 

"Action" for recovery of real prop- 
erty. — The word action as used in § 374, 
allowing a plaintiff two "actions" for the 
recovery of real property, is used in the 



same sense as it is defined in the instant 
section. See Walsh v. Evans, 112 S. C. 
131, 99 S. E. 546. See, also, Columbia 
Water Power Co. v. Columbia Land & 
Inv. Co., 47 S. C. 117, 25 S. E. 48. 

For illustration of "actions" for the re- 
covery of real property, the practitioner 
is referred to § 374, anaylsis line III, B, 
3, b. 

Certiorari is a civil action. — Certiorari 
is not a special proceeding but is a civil 
action in which disbursement can be 
taxed against the losing party on appeal. 
Smith v. Saye, 131 S. C. 378, 127 S. E. 
568; citing with approval Rawl v. Mc- 
Cown, 97 S. C. 1, 81 S. E. 958. 

Attachment is incident to an action 
and is not a special proceeding. — At- 
tachment being a form of process inci- 
dent to an action, is embraced in the 
term "action" and is not a special pro- 
ceeding. Campbell v. Home Ins. Co., 1 S. 
C. 158; Allen v. Portlow, 3 S. C. 417. 

An appeal from probate to circuit 
court upon the merits is an action. — -An 
appeal from the probate court to the cir- 
cuit court upon the merits is an action 
and not a special proceeding. Hender- 
son v. Hyatt, 8 S. C. 112. 

Criminal prosecutions are actions. — 
Criminal prosecutions are actions. State 
v. Reynolds, 48 S. C. 384, 26 S. E. 679. 

Condemnation proceeding is a special 
proceeding and not an "action", hence 



Page 1 



§ 2 Code of Civil Procedure Page 2 

need not be commenced by service of course of judicial proceedings, which 

summons and complaint. Jennings et al. are generally defined as proceedings be- 

v. Sawyer et al., 182 S. C. 427; 189 S. fore court or judge, publication thereof 

E. 746. is privileged, if fair and impartial re- 

Upon filing summons and complaint port of such proceedings and without 

in office of clerk of court, they become malice. Lybrand v. The State Co., 179 

public documents in public office, and S. C. 208; 184 S. E. 580. 
since filing is public and official act in 

§ 3. Definition of a special proceeding. — Every other remedy is a special 
proceeding. 

1932 Code, § 3; Civ. P. '22, § 3; Civ. P. '12, § 3; Civ. P. '02, § 3; 1870 (14) 423, § 3. 

Attachment of a crop under a lien is against a sheriff for official misconduct 

a special proceeding. — The attachment of is a special proceeding under this sec- 

a crop under an agricultural lien is a tion. Emory v. Davis, 4 S. C. 23. 

special proceeding under this section, Condemnation proceedings is a special 

and is not an action. Johnstone v. Mani- proceeding and not an "action," hence 

gault, 13 S. C, 403, 406; Sease v. Hobson, need not be commenced by service of 

33 S. C. 234, 11 S. E. 728. summons and complaint. Jennings et al., 

Rule against sheriff for official mis- v. Sawyer et al., 182 S. C. 427; 189 S. E. 

conduct is a special proceeding. — A rule 746. 

§ 4. Division of actions into civil and criminal. — Actions are of two kinds: 
1. Civil. 2. Criminal. 

1932 Code, § 4; Civ. P. '22, § 4; Civ. P. '12, § 4; Civ. P. '02, § 4; 1870 (14) 423, § 4. 

§ 5. Definition of a criminal action. — A criminal action is prosecuted by 
the State, as a party, against a person charged with a public offense, for the 
punishment thereof. 
1932 Code, § 5; Civ. P. '22, § 5; Civ. P. '12, § 5; Civ. P. '02, § 5; 1870 (14) 423, § 5. 

Criminal prosecutions are actions. — State v. Reynolds, 48 S. C. 384, 26 S. E. 
679. 

§ 6. Definition of a civil action. — Every other is a civil action. 
1932 Code, § 6; Civ. P. '22, § 6; Civ. P. '12, § 6; Civ. P. '02, § 6; 1870 (14) 423, § 6. 

For illustrations of "actions" see § 2 proceedings as distinguished from crim- 

and the note thereto. minal actions as defined in §§ 1 to 6. 

Depositions as provided for in the In re Perceval's Estate, 108 S. C. 39, 40, 

Civil Code can only be used as evi- 93 S. E. 243. 
dence in civil actions including special 

§ 7. Civil and criminal remedies not merged in each other. — Where the 
violation of a right admits of both a civil and criminal remedy, the right to 
prosecute the one is not merged in the other. 
1932 Code, § 7; Civ. P. '22, § 7; Civ. P. '12, § 7; Civ. P. '02, 7; 1870 (14) 423, § 7. 

Criminal prosecution cannot be shown a criminal prosecution cannot be given 
in mitigation of damages in civil suit. — in mitigation of damages. Edwards v. 
In a civil action for assault and battery Wessinger, 65 S. C. 161, 164, 43 S. E. 518 

§ 8. Division of the Code of Procedure. — This code of procedure is di- 
vided into two parts: the first relates to courts of justice and their jurisdic- 
tion; the second relates to civil actions in the courts of this State. 

1932 Code, § 8; Civ. P. '22, § 8; Civ. P. '12, § 8; Civ. P. '02, § 8; 1870 (14) 423, § 8. 

Second part of Code applies to court press reference is made to the inferior 

of common pleas unless express refer- courts. Doty & Co. v. Duvall, 19 S. C. 

ence made to inferior courts. — The sec- 143. 

ond part of the Code applies only to the Thus, nothing in this section should be 

court of common pleas except where ex- construed so as to affect the operation 



Page 3 Designation of Courts of Justice § 10 

of § 692 of this Code. State v. Kennedy, in criminal action. — The circuit court in 

85 S. C. 146, 67 S. E. 152. The provisions hearing appeals from the magistrate's 

of § 692 expressly apply also to criminal court based on alleged error of fact, may 

actions. State v. Reynolds, 48 S. C. 384, not consider affidavits as such practice 

26 S. E. 679. relates only to civil actions under this 

On appeal from magistrate's court a section. State v. Richardson, 98 S. C. 

circuit court may not consider affidavits 147, 82 S. E. 353. 



PART 1 

CI _ " ■ 

Courts of Justice and Their Jurisdiction 



TITLE 1 
Designation of Courts of Justice 

§ 9. The several courts of the State. — The following are courts of justice 
in this State: 

1. The court for trial of impeachments. 

2. The Supreme Court. 

3. The circuit courts, to wit: (1) A court of common pleas; and (2) A 
court of general sessions. 

4. County courts. 

5. Probate courts. 

6. Magistrates courts. 

7. Civil and criminal court of Charleston. 

8. City court and police court of Charleston. 

9. Mayors and municipal courts. 

1932 Code, § 9; Civ. P. '22, § 9; Civ. P. '12, § 9; Civ. P. '02, § 9; 1870, 423, § 9; Const. 
Art. V, 1; 1903 (24) 89; 1911 (27) 16. 

§ 10. Their jurisdiction generally. — These courts shall exercise the juris- 
diction now vested in them respectively, except as otherwise prescribed by 
this code of procedure or the laws of the State. 

1932 Code, § 10; Civ. P. '22, § 10; Civ. P. '12, § 10; Civ. P. '02, § 10; 1870, 423. § 10; 
1903 (24) 89; 1911 (27) 16. 



TITLE 2 
Courts and Judicial Officers 

Chapter 1. The Supreme Court, § 11. 
Chapter 2. The Circuits Courts, § 33. 
Chapter 3. County Courts, § 75. 
Chapter 4. Probate Court, § 205. 
Chapter 4-A. Courts of Domestic Relations, § 256-1. 
Chapter 5. Courts of Magistrates, § 257. 
Chapter 6. Civil and Criminal Court of Charleston, § 276. 
Chapter 7. The City Court and the Police Court of Charleston, § 289. 
Chapter 8. Attorneys, Solicitors and Counsellors, § 312. 
Chapter 9. General Provisions Respecting the Administration of Jus- 
tice, § 334. 



11 



Article 1. 
Article 2. 



Code of Civil Procedure 

CHAPTER 1 
The Supreme Court 

The Supreme Court and Its Officers, §11. 
The Supreme Court and Its Jurisdiction, § 26. 



Page 4 



ARTICLE 1 
The Supreme Court and Its Officers 



11. Justices. 


19. Salaries of justices. 


12. Quorum. 


20. Vacancies. 


14. Qualification. 


21. Special justices. 


15. Court of record. 


22. Roster of circuit judges. 


16. Messenger and attendant. 


23. Service of process. 


17. Clerk. 


24. Reports. 


18. Reporter. 


25. Costs in original actions. 



§ 11. Justices — election — term — quorum. — The Supreme Court shall con- 
sist of a Chief Justice and four associate justices, who shall be elected by a 
joint viva voce vote of the General Assembly for the term of ten years and 
shall continue in office until their successors are elected and qualified and 
shall be so classified that one of them shall go out of office every two years. 
The successors of the Chief Justice and associate justices shall each be 
elected at the session of the General Assembly next preceding the expira- 
tion of their respective terms. The time for the commencement of the terms 
of office shall be the first day of August after their election. In the absence 
of the Chief Justice, the justice oldest in service and present shall preside. 
If at any stated term of the court a quorum thereof shall not attend on 
the first day of the term, the justice or justices attending shall have the 
authority to adjourn the court from day to day for ten days after the time 
appointed for the commencement of said term, unless a quorum shall 
sooner attend; or unless a sufficient number of men learned in the law, 
commissioned by the Governor, as provided in section 21, to make a 
quorum shall sooner attend; and the business of the court shall not in such 
case be continued over to the next stated term thereof, until the expiration 
of said ten days. 
1941 (42) 120. 

§ 12. Quorum — adjournment — attendance — Chief Justice presides. — Any 

three of the justices shall constitute a quorum. It shall be the duty of all 
the justices to be present, and the Chief Justice shall preside. 

1932 Code, § 11; Civ. P. '22, § 11; Civ. C. '12, § 3815; Civ. C. '02, § 2721; Const. Art. 
V. § 2; 1896 (22) 3; 1941 (42) 120. 

§ 14. Qualification. — The justices of the Supreme Court shall qualify 
within twelve months after the date of their election by taking the consti- 
tutional oath or the office shall be declared vacant by the Governor. The 
oath shall be administered by a justice of said court or by a circuit judge. 



1932 Code, § 14; Civ. P. '22, 
R. S. 2222; 1896 (22) 3. 



Civ. C. 



§ 3818; Civ. C. '02, § 2722; G. S. 2090; 



Page 5 The Supreme Court and Its Officers § 18 

§ 15. Court of record. — The Supreme Court shall be a court of record, 
and the records thereof shall at all times be subject to the inspection of the 
citizens of the State or other persons interested. The records shall be kept 
in a manner prescribed by the justices of the court. 

1932 Code, § 15; Civ. P. '22, § 15; Civ. C. '12, § 3819; Civ. C. '02, § 2723; G. S. 2091; 
R. S. 2223; 1896 (22) 3. 

§ 16. Messenger — attendant — librarian. 

(1) Messenger — attendant — salaries. — The Supreme Court shall appoint 
a messenger of the court, and an attendant, to hold for the term of four 
years, and subject to removal by the court, and shall prescribe the duties 
of the officers so appointed. The messenger shall receive an annual salary 
of two hundred dollars. The attendant shall receive a salary of two hun- 
dred dollars. 

(2) Librarian. — The library of the Supreme Court shall be in the custody 
and care of the clerk of said court, who shall annually, with the consent and 
approval of the court, employ some suitable person, as a departmental 
clerk, to care for and attend in the library and perform such duties with 
reference thereto as may be prescribed by the court. The librarian so em- 
ployed may be discharged by order of the court at any time, and shall 
receive such compensation as may be provided by law. Any woman who 
has attained the age of twenty-one years, and has been a resident of this 
State for two years may be employed as such librarian. 

1932 Code, § 16; Civ. P. '22, § 16; Civ. C. '12, § 3820; Civ. C. '02, § 2724; G. S. 2094; 
R. S. 2226; 1896 (22) 3; 1918 (30) 788. 

§ 17. Clerk — fees and salary. — The Supreme Court shall also appoint a 
clerk, who shall hold his office for four years, and who shall have the cus- 
tody and keeping of its records, and shall furnish certified copies thereof 
to persons desiring the same, upon the payment of the fees prescribed by 
law. And he shall receive^ a fee of fifty cents for each remittitur in civil 
cases, to be taxed as their costs and disbursements, and a similar fee for 
each certificate. His salary shall be eight hundred dollars per annum, to be 
paid out of the state treasury, on the warrant of the comptroller general. 
1932 Code, § 17; Civ. P. '22, § 17; Civ. C. '12, § 3821; Civ. C. '02, § 2725; R. S. 2234 
thru 2236; G. S. 2109 thru 2111; 1896 (22) 3. 

Increase in appropriation held an in- parts of acts inconsistent therewith were 

crease in salary. — Where the annual ap- repealed and that the intent was to pay 

propriation for the salary of the clerk the clerk the amount provided for in 

provided for a larger amount than fixed the appropriation. Brooks v. Jones, 80 S. 

by statute it was held that all acts and C. 443, 61 S. E. 946. 

§ 18. Reporter to be appointed — duties — committee on publication of re- 
ports — alternative contracts. — The Supreme Court shall appoint a reporter 
for the term of four years, who shall take the constitutional oath before 
any one of the justices or the clerk of the Supreme Court. The clerk of the 
Supreme Court of this State is hereby required, upon the rendition of an 
opinion by the Supreme Court, to deliver forthwith to the reporter of said 
court a certified copy of all such decisions made by the court, together with 
a copy of the printed arguments and the brief of counsel, for use in publish- 
ing the South Carolina Reports, as hereinafter provided; should any copies 
furnished by the said clerk be used in the publication of any other reports 
than the official series of South Carolina Reports, the publisher shall pay 



§ 18 Code of Civil Procedure Page 6 

the said clerk the fees now provided by law for copies of opinions. The 
Speaker of the House of Representatives and the President of the Senate 
are hereby authorized and required to appoint a committee of three, com- 
posed of two members of the House of Representatives, to be appointed by 
the Speaker, and one member of the Senate, appointed by the President of 
the Senate, which committee shall contract for five years at a time for the 
prompt editing, publishing and distribution of the said opinions and bound 
volumes thereof; shall contract with the reporter of the Supreme Court to 
edit the reports of the cases decided by the Supreme Court, and with a 
competent publisher and printer, to print and distribute the same promptly. 

The reports of the decisions shall contain at least such matter as is now 
found in the South Carolina Reports including a syllabus of the decisions, 
citations, statements of the testimony and pleadings sufficient to give an 
understanding of the case and the decision of the court, and an alphabetical 
list (at the end of the volume) of all cases mentioned in any way in the 
decisions, and a full and complete digest and index to the contents of the 
volume. Each volume shall contain not more than one thousand pages, 
exclusive of index. 

1932 Code, § 18; Civ. P. '22, § 18; Civ. C. '12, § 3822; Civ. C. '02, § 2726; G. S. 2102 
thru 2108; R. S. 2237 thru 2241; 1896 (22) 3; 1901 (23) 622; 1920 (31) 1049; 1929 (36) 52. 

§ 19. Salaries. — The Chief Justice and associate justices, who are elected 
after the 14th day of March, 1935, shall each receive an annual salary of 
six thousand seven hundred and fifty ($6,750.00) dollars a year and shall 
not be allowed any fees or perquisites of office, nor shall they hold any 
other office of trust or profit under the State, the United States or any 
other power. 

1932 Code, § 19; Civ. P. '22 § 19; Civ. C. '12, § 3823; Civ. C. '02, § 2727; G. S. 2088; 
R. S. 2220; 1901 (23) 622; 1905 (24) 845; 1917 (30) 131; 1919 (31) 101; 1928 (35) 1237; 
1935 (39) 88. 

§ 20. Vacancies. — All vacancies in the Supreme Court shall be filled 
by elections as herein prescribed: provided, that if the unexpired term 
does not exceed one year such vacancy may be filled by executive appoint- 
ment, but when a vacancy is so filled by either appointment or election the 
incumbent shall hold only for the unexpired term of his predecessor. 

1932 Code, § 20; Civ. P. '22, § 20; Civ. C. '12, § 3824; Civ. C. '02, § 2728; G. S. 2088; 
R. S. 2220; 1901 (23) 622. 

§ 21. Disqualified in certain cases — special justices. — No justice shall pre- 
side in any case or at the hearing thereof, in which he may be interested, or 
when either of the parties shall be connected with him by affinity or con- 
sanguinity within the sixth degree, or in which he may have been counsel, 
or has presided in any inferior court. In case all or any of the justices of 
the Supreme Court shall be thus disqualified, or be otherwise prevented 
from presiding in any cause or causes, the court, or the justices thereof, 
shall certify the same to the Governor of the State, and he shall immedi- 
ately commission specially the requisite number of men learned in the 
law for the trial and determination thereof. When such appointments are 
made by the Governor, such person or persons shall receive as compensa- 
tion for their services while so acting as associate justice of the Supreme 
Court for the time actually engaged in performing such services, the same 
salary allowance and expenses and stenographic hire as an associate justice 



Page 7 The Supreme Court and Its Officers § 24 

of the Supreme Court would receive for the same period. Such salary 
and expense allowance shall be figured in the ratio that the number of 
days such associate justice is actually engaged in sitting with the court 
bears to the number of days that the court is actually in session during 
the year, except that in the event such acting associate justice shall sit 
and hear only one cause, he shall receive only fifty per cent of the salary 
and allowances herein fixed. The same to be paid upon a voucher ap- 
proved by the Chief Justice. 

1932 Code, § 21; Civ. P. '22, § 21; Civ. C. '12, § 3825; Civ. C. '02, § 2729; Const. Art. 
V, 6 and 12; 1887 (19) 85; 1926 (34) 1040. 

Sections 13 to 20, and 23 and 24 of the Objection as to disqualification must 

act of 1896 (22) 3, pertaining to the or- be made at the trial. — The objections as 

ganization of the Supreme Court and re- to consanguinity and affinity as provided 

ferring to its jurisdiction and procedure for under this section must be made at 

therein, were transfered to §§ 26 to 29 the time of the trial. Town v. Leake, 71 

in the Code of 1922 and are now em- S. C. 22, 50 S. E. 541. 
bodied in §§ 26, 27 and 30 of this Code. 

§ 22. Assignment of roster of circuit judges — duties of clerk — compensa- 
tion. — Between the first and fifteenth days of December in each year the 
Chief Justice, or in his absence or inability to attend, the senior associate 
justice, shall form a roster of the circuit judges of the several circuits in 
order to arrange a regular and continuous assignment and interchange of 
circuits among said judges, and make an order assigning the several circuit 
judges to hold the several circuit courts in all of the circuits of the State 
for the whole of the succeeding year in such order as will effect a con- 
tinuous interchange of circuits according to said numerical series. Imme- 
diately thereupon the Chief Justice, or, in his absence or inability to act, 
the senior associate justice, shall direct the clerk of the Supreme Court to 
furnish each of the circuit judges, as well as the Chief Justice and senior 
associate justice, with a certified copy of said order, which shall be suffi- 
cient notice to the said circuit judges of their assignment aforesaid, and 
they shall proceed to hold the courts in the circuits to which they are re- 
spectively assigned at the time appointed by law for the several circuit 
courts to be held, and the clerk of the Supreme Court shall also forthwith 
transmit a certified copy of said order to the clerk of every circuit court 
of the State. As a compensation for the services thus required of the clerk 
of the Supreme Court, he shall be entitled to draw from the state treasurer, 
upon the warrant of the comptroller general, who is hereby directed to 
issue the same, the sum of ten dollars, to be paid out of any money in the 
state treasury not otherwise appropriated. 

1932 Code, § 22; Civ. P. '22, § 22; Civ. C. '12, § 3826; Civ. C. '02, § 2730; 1896 (22) 3. 

§ 23. Sheriffs serve process, etc. — The Supreme Court is empowered to 
require the sheriff of each and every county to whom any order or process 
issuing from said court may be directed to serve and execute the same, 
and shall have the same power to enforce such service and execution and 
to punish default thereon as is vested in circuit courts in processes issuing 
therefrom. The sheriff and clerk of each and every county, whenever re- 
quired, shall attend any hearing in any case by any of the justices at the 
court house in any of the counties. 
1932 Code, § 23; Civ. P. '22, § 23; Civ. C. '12, § 3827; Civ. C. '02, § 2731; 1896 (22) 3. 

§ 24. Distribution of reports. — The state librarian shall distribute the 



§ 24 Code of Civil Procedure Page 8 

copies of the reports of the decisions of the Supreme Court of South Caro- 
lina purchased by the State as follows: to the office of the Governor of the 
State, of the attorney general of the State and of the attorney general of 
the United States, one copy each; to the circuit judges of the State, one 
copy each; to the library of the Supreme Court of the United States, the 
clerk of the circuit court of appeals of the United States for the fourth 
circuit, the library of the South Carolina University, the Charleston library 
society, and the clerk of the district court of the United States for the dis- 
tricts of South Carolina, one copy each; to the library of the Supreme 
Court of this State, eight copies; to every State and Territory of the United 
States from which the State receives two or more copies of each volume 
of their law reports, two copies each; and to every other State and Territory 
of the United States, one copy each; and all copies of South Carolina Re- 
ports, not heretofore disposed of and not distributed under the provisions 
of this section, shall be retained in the state library for the use of this 
State. 

1932 Code, § 24; Civ. P. '22, § 24; Civ. C. '12, § 3828; Civ. C. '02, § 2732; G. S. 2107; 
R. S. 2242; 1880 (17) 533; 1908 (25) 1128; 1917 (30) 64; 1936 (39) 1350. 

See § 2109 for copies send Library of Congress. 

§ 25. Costs and disbursements in actions brought in original jurisdiction. 

— In all actions and proceedings brought in the Supreme Court in its 
original jurisdiction, the court shall have the power to provide, by rule, 
order or otherwise, for the payment of reasonable costs and disbursements 
of the case by the losing party, or otherwise, as in the judgment of the 
court may be just and proper, such costs and disbursements to be taxed 
and adjusted by the clerk of said court under direction of the court; when 
the clerk has taxed such costs and disbursements under the direction of 
the court, he shall certify the taxation to the clerk of the court of common 
pleas for the county in which the party resides against whom such costs 
and disbursements have been taxed; the said clerk of the court of common 
pleas shall enter judgment therefor, as other judgments are entered, and 
shall issue execution for the enforcement of said judgment; the judgment 
so entered shall have the same force and effect in all respects as judgments 
rendered by the court of common pleas. 

1932 Code, § 25; Civ. P. '22, § 25; Civ. '12, § 3829; 1909 (26) 162; 1941 (42) 140. 



ARTICLE 2 
The Supreme Court and Its Jurisdiction 

26. Jurisdiction. 29. Printing of testimony. 

27. Powers on appeal. 30. Number to concur. 

28. Terms. 31, 32. Place of holding court. 

§ 26. Jurisdiction of Supreme Court. 

(A) Remedial and original writs. — The Supreme Court shall have power 
to issue writs or orders of injunction, mandamus, quo warranto, prohibition, 
certiorari, habeas corpus and other remedial and original writs: each of 
the justices of the Supreme Court shall have the same power at chambers, 
to administer oaths, issue writs of habeas corpus, mandamus, quo warranto, 



Page 9 Supreme Court and Its Jurisdiction § 26 

certiorari, prohibition and interlocutory writs or orders of injunction as 
when in open court: provided, an appeal shall be allowed from his decision 
to the Supreme Court. 

(B) Where issues of fact arise. — Whenever in the course of any such ac- 
tion or proceeding in the Supreme Court, arising in the exercise of the 
original jurisdiction conferred upon the court by the Constitution and 
laws of the State, an issue of fact shall arise upon the pleadings, or when 
an issue of fact shall arise upon a traverse to return in mandamus, pro- 
hibition, certiorari, or whenever the determination of any question of fact 
shall be necessary to the exercise of the jurisdiction conferred upon the 
Supreme Court, the said court shall have power to frame an issue therein 
and certify the same to the circuit court for the county wherein the cause 
shall have originated, or in case of original jurisdiction to the circuit court 
of the county in which the cause of action shall have arisen. The Supreme 
Court shall also have the same powers as are now possessed by the circuit 
court of the State for the appointment of referees to take testimony and 
report thereon, under such instructions as may be prescribed by said court, 
in any cases arising in the Supreme Court wherein issues of fact shall arise. 

(C) Appellate jurisdiction in chancery. — The Supreme Court shall have 
appellate jurisdiction only in cases of chancery, and in such appeals they 
shall review the findings of fact as well as the law, except in chancery 
cases when the facts are settled by a jury and the verdict not set aside. 

(D) Appellate jurisdiction in law cases. — The Supreme Court shall have 
appellate jurisdiction for correction of errors of law in law cases, and 
shall review upon appeal: 

(1) Any intermediate judgment, order or decree in a law case involving 
the merits in actions commenced in the court of common pleas and gen- 
eral sessions, brought there by original process, or removed there from 
any inferior court or jurisdiction, and final judgments in such actions: 
provided, if no appeal be taken until final judgment is entered, the court 
may upon appeal from such final judgment review any intermediate order 
or decree necessarily affecting the judgment not before appealed from. 

(2) An order affecting a substantial right made in an action, when such 
order in effect determines the action and prevents a judgment from which 
an appeal might be taken, or discontinues the action, and when such order 
grants or refuses a new trial; or when such order strikes out an answer 
or any part thereof, or any pleading in any action; upon any appeal from 
an order granting a new trial on a case made, or on exceptions taken, if 
the Supreme Court shall determine that no error was committed in grant- 
ing the new trial, it shall render judgment absolute upon the right of the 
appellant; and after the proceedings are remitted to the court from which 
the appeal was taken, an assessment of damages, or other proceedings to 
render the judgment effectual, may be then and there had in cases where 
such subsequent proceedings are requisite. 

(3) A final order affecting a substantial right made in any special pro- 
ceeding, or upon a summary application in any action after judgment, 
and upon such appeal to review any intermediate order involving the 
merits and necessarily affecting the order appealed from. 

(4) An interlocutory order or decree in the court of common pleas, 
granting or continuing or modifying or refusing an injunction, or else 
granting or continuing or modifying or refusing the appointment of a 
receiver hereafter granted in any action: provided, that the notice of ap- 



§ ^6 



Code of Civil Procedure 



Page 10 



peal must be given within ten days from written notice of the filing of 
such interlocutory order or decree; and such appeal shall take precedence 
in the Supreme Court; and the proceedings in other respects in the court 
below shall not be stayed during the pendency of such appeal unless other- 
wise ordered by the court below. 

1932 Code, § 26; Civ. P. '22, § 26; Civ. P. '12, § 11; Civ. P. '02, § 11; 1896 (22) § 1; 
1901 (23) 623. 

Governor in a case in which he is created 
a judicial tribunal by the General As- 
sembly. State ex rel. Rawlinson v. 
Ansel, 76 S. C. 395, 57 S. E. 185. 

But certification of record of acts pure- 
ly executive is not enforceable by cer- 
tiorari. — The Supreme Court has no ju- 
risdiction by certiorari to require the 
Governor to certify to it the record of 
acts which are purely executive and not 
judicial. State ex rel. Rawlinson v. 
Ansel, 76 S. C. 395, 57 S. E. 185. 



I. Editor's Note. 
II. Subdivision (A). 

III. Subdivision (B). 

IV. Subdivision (C). 
V. Subdivision (D). 

A. General Considerations. 
B. Subsection (1). 

1. Judgment or order "involv- 
ing the merits." 

a. Rules stated. 

b. Illustrations. 
(1) Judgment or order 

"Involving the merits." 
(2) Judgment or order not 
"involving the merits." 
C. Subsection (2). 

1. In general. 

2. Judgment or order affecting 

a "substantial right." 

3. Order granting or refusing 

new trial. 
D. Subsection (3). 
E. Subsection (4). 

I. EDITOR'S NOTE. 

There have been few cases which con- 
strue subdivisions A, B and C of this 
section. Most of the decided cases, 
wherein this section has been cited, deal 
primarily with one or more of the sub- 
sections contained in subdivision D. For 
the purpose of clarity each subdivision 
has been treated under a separate analy- 
sis line. 

The annotations to this section have, 
in the main, been confined to the general 
principles gathered from the decided 
cases. A fair number of illustrations to 
each of the principles is also given in the 
following note. It is the hope of the 
editor that the general principles and ill- 
ustrations set out in the following note 
will serve as a helpful guide in the con- 
struction of the provisions of this sec- 
tion. 

II. SUBDIVISION (A). 

Special damages must be shown be- 
fore granting mandamus. — Mandamus 
will not be granted to compel the re- 
moval of dam obstructing a navigable 
stream unless the plaintiffs show special 
damages resulting to them, or damages 
other than naturally result to the gen- 
eral public. State v. Charleston Light 
and Water Co., 68 S. C. 540, 47 S. E. 979. 

Certiorari is enforceable against Gov- 
ernor where acting as judicial tribunal. 
— The Supreme Court has jurisdiction to 
enforce a writ of certiorari against the 



Application for injunction vs. receiver 
proper in original jurisdiction of Su- 
preme Court. — Supreme Court's order 
directing that industrial corporation's 
property in receivership be sold as going 
concern and negativing applicability of 
statute providing that bidding in case of 
judicial sale of realty remain open for 
thirty days, was law of case, authorizing 
injunction proceedings in original juris- 
diction of Supreme Court to restrain re- 
ceivers from announcing at sale that 
statute applied. Montgomery Crawford, 
Inc., et al. v. Arcadia Mills, et al, 174 
S. C. 252; 177 S. E. 151. 

Single justice of Supreme Court has 
power to issue writ in court's original 
jurisdiction and make it returnable to 
court as whole. King, Insurance Com- 
missioner, v. Aetna Ins. Co. et al, 168 
S. C. 84, 167 S. E. 12. 

Original proceeding by insurance com- 
missioner for construction of statute and 
for injunction to prevent foreign fire 
insurance companies from doing busi- 
ness in state without complying with 
statute, is within jurisdiction of Supreme 
Court, as jnvolving "public interests" 
and "special grounds of emergency,,' 
where federal court granted stay pend- 
ing state court's decision. Ibid. 

Proceeding in Supreme Court by sum- 
mons and complaint instead of upon rule 
issued by court is irregular, but irre- 
gularity waived in view of grave emer- 
gency affecting a county. Clary, County 
Supervisor, et al. v. Harvey, County 
Auditor, 176 S. C. 512; 180 S. E. 673. 

Proceedings for injunction. — As to pro- 
ceedings for injunction in original juris- 
diction, see British American Mortgage 
Co. v. Jones, 76 S. C. 218, 56 S. E. 983; 
Dillingham v. Spartanburg, 75 S. C. 549, 
56 S. E. 381, 117 Am. St. Rep. 917. 

For full treatment of the subject of in- 



Page 11 



Supreme Court and Its Jurisdiction 



26 



junction, see § 565, et seq. and the note 
thereto. 

III. SUBDIVISION (B). 

Issue of title may be certified for jury- 
trial. — If in a case for an injunction to re- 
move a cloud on a title it becomes neces- 
sary to settle an issue of title, the Sup- 
reme Court may under this section cer- 
tify that issue to the circuit court to be 
tried by a jury. Trustees of the Univer- 
sity v. trustees of the Academy, 85 S. C. 
546, 67 S. E. 951. 

Referee may take testimony of party 
refusing to make affidavit. — The Su- 
preme Court has power to appoint a 
referee to take the testimony of a party 
declining to make an affidavit in pro- 
ceedings before it. State v. Marks, 70 
S. C. 448, 50 S. E. 14. 

IV. SUBDIVISION (C) 
Burden of proof is on appellant. — In 

equity cases the appellant has the bur- 
den of showing that the findings of the 
appellate court were against the prepon- 
derance of the evidence. Boatwright v. 
Crosby, 83 S. C. 190, 65 S. E. 174, 175; 
Tindall v. Sublett, 82 S. C. 199, 63 S. E. 
960. 

Error as to refusal of new trial in- 
volving issues of fact not reviewable. — 
Exceptions assigning error in the re- 
fusal of a motion for a new trial in a 
chancery case which merely involve 
questions of fact cannot be reviewed by 
the Supreme Court. Tindal v. Sublett, 
82 S. C. 199, 63 S. E. 960. 

V. SUBDIVISION (D). 

A. General Considerations. 

Connotation of the word "cases." — The 
word "cases" is used as comprehending 
special proceedings as contradistinguish- 
ed from "actions." Sease v. Dobson, 36 
S. C. 554, 15 S. E. 703. 

Jurisdiction of Supreme Court over ap- 
peals from a city court is exclusive. — 
The jurisdiction of the Supreme Court 
over appeals from a city court is exclu- 
sive. City Council v. Weller, 34 S. C. 357, 
13 S. E. 628. 

And the absence of special provision 
as to jurisdiction does not affect the ju- 
risdiction of such court. — The absence 
of a provision conferring jurisdiction to 
review appeals from a city court does 
not affect the jurisdiction of the Supreme 
Court. City Council v. Weller, 34 S. C. 
357, 13 S. E. 628. 

Appeals from a justice of same nature 
as appeals from the circuit court. — Ap- 
peals from a justice are of the same na- 
ture as appeals from the circuit court. 
Western Union Tel. Co. v. Winnsboro, 
72 S. C. 42, 43, 51 S. E. 528. 

Appeal from intermediate order leav- 
ing unaffected a former order is con- 
clusive of appeal from the former order. 
— An appeal from an intermediate or- 
der leaving unaffected a former order is 



conclusive of appeal from the former 
order. Pringle v. Sizer, 7 S. C. 131. 

Appeal suspends further proceedings 
below. — An appeal from an order over- 
ruling a demurrer to the complaint be- 
cause it did not state facts sufficient to 
constitute a cause of action stayed fur- 
ther proceedings below during the pend- 
ency of the appeal. Hammond v. Rail- 
road Co., 15 S. C. 10, 35; cited with ap- 
proval in National Exch. Bank v. Stel- 
ling, 32 S. C. 102, 10 S. E. 766. 

An appeal will not lie from a verdict 
when no judgment or order has been 
predicated thereon. — It has been held 
frequently that an appeal will not lie 
from a verdict of a jury on certain mat- 
ters submitted to them but on which 
verdict no order or judgment has been 
predicated. Broch v. Kirkpatrick, 69 S. 
C. 231, 48 S. E. 72. See also, All v. 
Hiers, 59 S. C. 557, 38 S. E. 157; Hut- 
matcher v. Charleston Consol. Co., 63 
S. C. 123, 40 S. E. 1029. 

B. Subsection (1). 

1. Judgment or order "Involving the 

Merits." 

a. Rules Stated. 

"Merits" includes all rights to which 
party is entitled. — The term "merits" is 
not very clearly defined. It certainly 
embraces more than the questions of law 
and fact, constituting the cause of action 
or defense. The word "merits" naturally 
bears the sense of including all that the 
party may claim of right in reference to 
his case. Blakely v. Frazier, 11 S. C. 122, 
134. 

The terms "involving the merits" and 
"neccessarily affecting the judgments" 
are equivalent. Blakely v. Frazier, 11 
S. C. 122. The terms must be regarded 
as different definitions of the same 
case. Id. 

But order to "involve merits" must 
determine some substantial matter. — 
An order to involve the merits must 
finally determine some substantial mat- 
ter forming the whole or a part of some 
cause of action or defense in the case in 
which the order is entitled. If the order 
merely affects the form of procedure, it 
does not involve the merits. Henderson 
v. Wyatt, 8 S. C. 112. The erroneous 
order must decide some point that goes 
to the very root of the matter involved. 
Sease v. Dobson, 34 S. C. 345, 13 S. E. 
530, and the authorities therein cited. 

It may be concluded that whenever a 
substantial right of the party to an ac- 
tion material to obtaining a judgment in 
such action is denied, a right of appeal 
lies to the Supreme Court. Blakely v. 
Frazier, 11 S. C. 122, 135. 

And must not be mere exercise of 
court's discretion. — An order involving 
merely the exercise of discretion on the 
part of the court making it is not ap- 



26 



Code of Civil Procedure 



Page 12 



pealable, as error of law cannot be al- 
leged against such an order. Blakely v. 
Frazier, 11 S. C. 122, 134; Deal v. Deal, 
85 S. C. 262, 67 S. E. 241, 242. 

Intermediate order affecting final 
judgment reviewable with final judg- 
ment. — An order intermediate in its na- 
ture and involving the merits of the case 
is reviewable on appeal from the final 
judgment, under subdivision (1), as an 
intermediate order of decree necessarily 
affecting the judgment. McMaster v. 
Ford Motor Co., 122 S. C. 244, 115 S. E. 
244. See Hyatt v. McBurney, 17 S. C. 
143, 150; Lee v. Fowler, 19 S. C. 607. 

In the dissenting opinion in the case 
of Bodie v. Charleston & W. C. Ry. Co., 
66 S. C. 302, 44 S. E. 943, it was said in 
construing this provision that where no 
notice of the appeal was given, and no 
exceptions taken at the time the inter- 
mediate order was made an appeal from 
such intermediate order may be taken 
along with the final judgment appealed 
from. 

An order of the court that the report 
of a certain referee be printed is not 
a rule of the court so as to come under 
the Code for a payment of such print- 
ing and such an order is one affecting the 
judgment, and may be reviewed upon 
an appeal from the final judgment. Scott 
v. Alexander, 27 S. C. 15, 2 S. E. 706. 

And it is better practice to await ap- 
peal from final judgment. — In Capell v. 
Moses, 36 S. C. 559, 15 S. E. 711, it is said 
that the better practice is to await ap- 
peal from final judgment and then have 
reviewed errors and defects in inter- 
mediate and interlocutory orders. The 
court further said that it is only in ex- 
ceptional cases that an appeal from an in- 
termediate or interlocutory order is 
viewed with favor. 

b. Illustrations. 

(1) Judgments or Order "Involving 
Merits." 

An order setting aside a verdict with- 
out notice to successful party. — An order 
setting aside a verdict for the plaintiff 
without notice to him is an order which 
involves the merits and is reviewable 
before final judgment. Williams v. Char- 
leston, 7 S. C. 71. 

And an order refusing an oral demurrer 
involves the merits. — An order overrul- 
ing an oral demurrer is an order in- 
volving the merits and hence reviewable. 
Elliott v. Rollitzer, 24 S. C. 81, 86. See 
also, McCown v. McSween, 29 S. C. 130, 
7 S. E. 45. 

Order refusing to change place of trial. 
—An order refusing to change the place 
of trial to the county where the defend- 
ant resides is an order involving the 
merits and hence reviewable before 
judgment. Blakely v. Frazier, 11 S. C. 
122. 



For statutory grounds for change of 
place of trial, see § 426 and the note 
thereto. 

Order refusing to allow amendment 
upon legal grounds. — Although applica- 
tions to amend pleadings are addressed 
to the discretion of the trial court yet 
where the refusal is based, not upon 
discretion, but upon legal grounds, an 
appeal will lie under this subdivision. 
Sibley v. Young, 26 S. C. 415, 2 S. E. 314. 

An appeal from an order of reference 
on jurisdictional grounds may be had. — 
An appeal which raises a jurisdictional 
question may be taken from an order re- 
ferring the case to a master to take tes- 
timony before the entry of a final judg- 
ment. Simms v. Phillips, 46 S. C. 149, 
24 S. E. 97. 

Order allowing an appeal from a ver- 
dict of a jury in an inferior court. — An 
order allowing an appeal to the court of 
common pleas from the verdict of a jury 
impaneled in an inferior jurisdiction is 
an order involving the merits within 
subsection 1. Atlantic Coast Line R. Co. 
v. South Bound R. Co., 57 S. C. 317, 35 
S. E. 553. 

Order adjudging a person party to an 
action appealable. — An order adjudging 
that a person has been made a party to 
an action is appealable under subdivis- 
ion (1). National Exch. Bank v. Stelling, 
32 S. C. 102, 10 S. E. 766. 

Order depriving party of legal mode 
of trial. — An order of reference that de- 
prives a party of a mode of trial which 
the law allows him is an order which 
involves the merits and is appealable 
under this section. Ferguson v. Harri- 
son, 34 S. C. 169, 13 S. E. 332; Mc- 
Laurin v. Hodges, 43 S. C. 187, 20 S. E. 
991; Alston v. Limehouse, 61 S. C. 1. 
39 S. E. 192. 

2. Judgment or Order Not "Involving 
the Merits." 

Order denying motion to make plead- 
ing more definite. — An order denying a 
motion to require plaintiff to make more 
definite and certain his bill of complaint 
does not go to the merits. Hawkins v. 
Wood, 60 S. C. 521, 39 S. E. 9, 10. But 
an order denying a motion to make more 
definite a complaint by stating the 
causes of action separately, when the al- 
legations are appropriate to two or more 
causes of action does affect the merits. 
Blakely v. Frazier, 11 S. C. 122. See 
also on this point, Fladger v. Beckman, 
42 S. C. 547, 20 S. E. 790: Pickett v. 
Fidelity & Casualty Co., 52 S. C. 584, 
30 S. E. 614. 

An order denying a motion to require 
the plaintiff to make his complaint more 
definite is not appealable until final 
judgment. Fladger v. Bechman, 42 S. C. 
547, 20 S. E. 790, cited with approval 
in Males v. Charleston Light & Water 



Page 13 



Supreme Court and Its Jurisdiction 



§ 26 



Co., 87 S. C. 254, 69 S. E. 292. 

Order allowing an amendment to a 
complaint. — An order allowing an 
amendment to a complaint was held not 
to affect the merits of the case in the 
case of Buist v. Williams, 83 S. C. 321, 
65 S. E. 343. 

Order extending time for service of ex- 
ceptions. — An order extending the time 
for serving the case and exceptions on 
appeal is not appealable under any of 
the subdivisions of this section. Deal 
v. Deal, 85 S. C. 262, 67 S. E. 241. 

Order docketing a legal action. — An 
order docketing a legal action to which 
an equitable defense was interposed, on 
calendar 2, for the purpose of having the 
equitable defense tried by the court 
when it was already docketed on cal- 
endar 1, did not involve the merits and 
hence is not appealable under the sec- 
tion. Knox. v. Campbell, 52 S. C. 461, 
30 S. E. 485. 

Order allowing reference in chancery 
suit. — An order of reference in an action 
to set aside a deed and mortagage on the 
grounds of fraud, when the pleading 
shows the question raised to be equita- 
ble in character, and it appears that the 
order was made after full statements by 
counsel is not appealable under subsec- 
tion 1, nor under subsections 2 or 3. Fer- 
guson v. Harrison, 34 S. C. 169, 13 S. E. 
332. See, also, Brock v. Kirkpatrick, 69 
S. C. 231, 48 S. E. 72. 

Where a decree of foreclosure and an 
order of sale are made, and a reference 
to a master is made in order to ascertain 
the amount due and the defendant noted 
an appeal which was dismissed because 
the notice was not given in proper time 
it was held that no appeal would lie from 
an order by a succeeding judge con- 
firming the report of the master, and 
ordering the sale, when no error is 
charged as to the report or order of con- 
firmation, as the first decree was con- 
clusive of every issue involved in the 
action. Wallace v. Carter, 32 S. C. 314, 
11 S. E. 97. 

An order of reference, the purpose of 
which is to take proof of claims against 
an insolvent partnership to close up its 
affairs, before a master, not involving 
the merits of any issue embraced in the 
case is not appealable under this sub- 
division. Jones v. Trumbo, 29 S. C. 26, 
6 S. E. 887. See also, Palmetto v. Risley, 
25 S. C. 309. 

Order denying a reference to master 
in chancery suit. — A reference for the 
purpose of taking testimony is not de- 
mandable as a matter of right in any 
equity cause, hence an order denying 
such reference does not involve the mer- 
its of the action within subsection 1, nor 
does it affect any substantial right of 



the appellant within subsection 2, hence 
such order is nonappealable. Farmer's 
Mut. Inc. Co. v. Berry, 53 S. C. 129, 31 
S. E. 53. 

Order allowing appeal from inferior 
court. — Where an appeal is allowed by a 
circuit court from the verdict of a jury 
in a proceeding to condemn land for a 
right of way such order of the circuit 
court in allowing the said appeal invol- 
ves the merits of the case and affects 
the substantial rights of the parties, 
hence it can be reviewed on appeal under 
this subdivision. Atlantic Coast Line R. 
Co., v. South Bound R. Co., 57 S. C. 
317, 35 S. E. 553. 

Interlocutory order of injunction. — An 
interlocutory injunction made solely for 
the purpose of keeping the subject of the 
action in status quo until the merits of 
the action can be considered and deter- 
mined, determines none of the rights of 
the parties to the action but simply pre- 
vents any interference with the subject 
of the action until those rights can be 
considered and adjudicated. Such order 
does not involve the merits and is un- 
pealable under this subdivision. Gar- 
lington v. Copeland, 25 S. C. 41. 

Interlocutory order directing seizure of 
property. — An interlocutory administra- 
tive order directing the sheriff to seize 
property in a claim and delivery action 
out of his county, does not involve the 
merits, hence is not appealable under this 
section. Easterling v. Odom, 98 S. C. 
171, 82 S. E. 407. 

Order discharging clerk for refusing 
to enter judgment. — An order discharg- 
ing the clerk on rule for refusing to en- 
ter judgment and reinstating a case, is 
an order not involving the merits. Mc- 
Millan v. McCall, 2 S. C. 390. 

Order requiring security for costs. — An 
order requiring security for costs is an 
order not involving the merits. McMil- 
lan v. McCall, 2 S. C. 390. 

Orders on motion to dissolve attach- 
ments. — Orders on motion to dissolve at- 
tachments do not involve the merits and 
are not reviewable before judgment. Al- 
len v. Partlow, 3 S. C. 418. 

Order refusing to vacate an order of 
arrest. — An order refusing to vacate an 
order of arrest does not come within 
this section. Hurst v. Samuels, 29 S. C. 
476, 7 S. E. 822. 

Order refusing a nonsuit. — An order 
refusing nonsuit is not an order involv- 
ing the merits and such order is not re- 
viewable before judgment. Agnew v. 
Adams, 24 S. C. 86. 

Order allowing appeal denied by pro- 
bate court. — An order of the circuit court 
allowing an appeal, which has been de- 
nied by the probate court as it merely 
affects the form of procedure does not 



§ 26 



Code of Civil Procedure 



Page 14 



involve the "merits" and is not review- 
able before judgment. Henderson v. 
Wyatt, 8 S. C. 112. 

An order determining whether an ap- 
peal from the Probate Court was taken 
in time does not involve the merits. 
Henderson v. Wyatt, 8 S. C. 112. 

Order denying issue out of chancery 
prior to hearing upon merits. — In an ac- 
tion for the purpose of having a deed 
cancelled where the plaintiff is neither 
in possession of the premises conveyed 
nor does he set up any title thereto but 
bases his claim solely upon an equity 
growing out of an alleged fraud practic- 
ed on him, an order refusing his motion 
for an issue for a jury in advance of the 
hearing upon the merits does not deny 
the plaintiff any substantial rights to 
which he is entitled nor does it involve 
the said merits within this section and 
is unappealable either under subsection 

I or 2. DuPont v. DuBos, 33 S. C. 389, 

II S. E. 1073. 

Cited but not construed, Copeland v. 
Copeland, 60 S. C. 135, 38 S. E. 269; 
Sandel v. State, 122 S. E. 571; Mauldin 
v. City Council, 64 S. C. 444, 42 S. E. 
202. 

C. Subsection (2). 
1. In General. 

See the treatment under the next fore- 
going analysis line and the authorities 
therein discussed. 

Prior law as to necessity of consent 
to appeal. — Under the former standing 
of this section it was necessary that the 
appellant give his consent in the notice 
of appeal from an order granting a new 
trial. The provisions requiring such con- 
sent as a condition of the appeal were 
later stricken from the statute by amend- 
ment. For a construction of such provis- 
ion, see Caston v. Brock, 14 S. C. 104. 

Terms of statute are mandatory. — The 
terms of this -staute are mandatory and 
it is perfectly clear that this court must 
entertain appeals from orders which 
grant new trials when they are based 
upon errors of law. Daughty v. North- 
western R. Co., 92 S. C. 361, 75 S. E. 
553. See also, Ingram v. Hines, 126 S. C. 
509, 120 S. E. 493. 

Order striking portion of pleading is 
appealable. — An order sustaining a de- 
murrer which has the effect of striking 
out a part of the complaint is appealable 
under this section. Miles v. Charleston 
Light & Water Co., 87 S. C. 254, 69 S. 
E. 292. 

But order refusing to strike is not 
appealable. — There is no provision for 
appeal made under this section for a re- 
fusal to strike out a pleading or a part 
thereof. Cooper v. Atlantic Coast Line 
R. Co., 78 S. C. 562, 59 S. E. 704. 

The reason for this distinction is that 



if the circuit court errs in striking out 
any material allegations of a good cause 
of action or good defense, it is impossi- 
ble to remedy it in the course of the 
trial because the evidence and issues are 
submitted to the jury according to the 
pleadings, and on appeal from the final 
judgment the Supreme Court could not 
say there was error of law in confining 
the evidence and charge to the plead- 
ings. This same reasoning does not 
apply where the court refuses to strike 
out a portion of a pleading. See Har- 
bert v. Atlanta, etc., Ry Co., 74 S. C. 
13, 53 S. E. 1001. 

The question whether a verdict is con- 
trary to the weight of evidence cannot 
be determined on appeal. — Whether or 
not a verdict is capricious or contrary 
to the weight of the evidence cannot be 
determined on appeal. Cooper v. Atlan- 
tic Coast Line R. Co., 78 S. C. 562, 59 S. 
E. 704; citing Blowers v. So. Ry., 74 S. 
C. 221, 222, 54 S. E. 368. See also, In- 
gram v. Hines, 126 S. C. 509, 120 S. E. 
493. 

When judgment absolute can be ren- 
dered. — The appellate court can render 
judgment absolute only in those cases 
where there is no error in the order ap- 
pealed from and the questions of law 
involved are conclusive of case both as to 
law and merits. Snipes v. Davis, 131 S. 
C. 298, 127 S. E. 447; Walker v. Guinn, 
134 S. C. 510, 133 S. E. 444. 

2. Judgments or Order Affecting. 
a. "Substantial Right." 

Editor's note. — Almost every case 
which has considered this subsection for 
the purpose of ascertaining whether a 
substantial right has been affected by the 
order or judgment appealed from, has 
cited and discussed subsection (1). In 
the ilustration of orders "involving the 
merits," within the meaning of that 
phrase in subsection (1), we have made 
numerous references to the provisions of 
subsection (2), showing whether or not 
the particular case could be considered 
as "affecting a substantial right." To 
avoid repetition of these illustrations, 
we merely refer the practitioner to those 
illustrations. 

Order upon motion for continuance 
does not affect a substantial right. — 
An order made upon a motion for a can- 
tinuance and not when the merits of the 
case were under consideration cannot be 
construed or in any respect regarded as 
"involving the merits" or affecting a 
substantial right. Latimer v. Latimer, 
42 S. C. 205, 20 S. E. 159, citing this sub- 
section and subsection one. 

Order denying legal mode of trial af- 
fects a substantial right. — An order de- 
nying a party the mode of trial to which 
he is entitled by law, and requiring him 



Page 15 



Supreme Court and Its Jurisdiction 



§ 26 



to submit to some other mode of trial 
is an order affecting a substantial right 
and is appealable under this section. Fer- 
guson v. Harrison, 34 S. C. 169, 13 S. E. 
332. 

Order striking out a portion of the 
complaint affects a substantial right. — 
An order on demurrer to a complaint 
which in effect strikes out a portion 
thereof is an order affecting a substan- 
tial right. Miles v. Charleston Light and 
Water Co., 87 S. C. 254, 69 S. E. 292. 

An order refusing a petition to be 
made party to a cause affects a substan- 
tial right. — An order refusing a petition 
to be made a party to a cause is an order 
affecting a substantial right under this 
section and is appealable. Rutledge v. 
Tunno, 63 S. C. 205, 41 S. E. 308. 

Order giving judgment by default ap- 
pealable. — An order refusing leave to the 
defendant to file his answer and giving 
judgment by default against him is ap- 
pealable. Ayer v. Chasserean, 18 S. C. 
597. 

Order allowing appeal from inferior 
court. — An order allowing an appeal to 
the court of common pleas from the 
verdict of a jury empaneled in an in- 
ferior court is an order affecting a sub- 
stantial right. Atlantic Coast Line R. 
Co. v. South Bound R. Co., 57 S. C. 317, 
35 S. E. 553. 

Order allowing reference in chancery 
suit. — See this catchline under analysis 
line, "judgment or order not involving 
the merits," IV, B, 1, b, 2. 

Order denying issue out of chancery 
prior to hearing upon merits. — An order 
denying a motion for issue for a jury, in 
advance of hearing upon the merits, does 
not affect a substantial right within the 
meaning of this subsection. DuPont v. 
DuBos, 33 S. C. 389, 11 S. E. 1073. 

Cited but not construed in Citizen's 
Bank v. Heyward, 144 S. C. 365, 142 S. 
E. 651. 

3. Order Granting or Refusing New 
Trial. 

Editor's note. — The provisions of this 
section relating to appeals from orders 
granting or denying motions for new 
trials must be read in connection with 
§ 34, which confers upon the circuit 
courts the power to entertain such mo- 
tions. The editor has deemed it ex- 
pedient to place under § 34 most of the 
annotations pertaining to the appellate 
review of the decision on such motions. 
We therefore refer the practitioner to 
the treatment there found. In order, 
however, to insure an understanding 
of the relation between the two sections 
and to assist the practitioner in connect- 
ing the annotations to the two sections, 
we set forth the following principles: 

As § 34 has been judicially construed, 



the granting of motions for new trials 
lies within the discretion of the court, 
State v. David, 14 S. C. 428; Durant v. 
Philpot, 16 S. C. 116; Sams v. Hoover, 
33 S. C. 401, 12 S. E. 8, and the exercise 
thereof will not usually be disturbed, 
State v. Hawkins, 121 S. C. 290, 114 S. 
E. 538, 27 A. L. R. 1083, unless the court 
committed an error of law, Hall v. 
Northwestern R. Co., 81 S. C. 522, 62 S. E. 
848, and the instant section does not 
attempt to make an order granting a 
new trial appealable when it is based 
solely upon questions of fact, Doughty v. 
Northwestern R. Co., 92 S. C. 361, 75 S. 
E. 553, citing Massey v. Adams, 3 S. C. 
254, 263; Caston v. Brock, 14 S. C. 104, 
but where there has been an abuse of 
the court's discretion, its order granting 
or denying a motion for new trial will 
be reviewed. Darlington Oil Co. v. Pee 
Dee Oil Co., 68 S. C. 46, 46 S. E. 720; 
Miller v. Atlantic Coast Line R. Co., 95 
S. C. 471, 79 S. E. 645, citing State v. 
David, 14 S. C. 432. See, also, Planter's 
Oil Co. v. Lightsey, 98 S. C. 3, 81 S. E. 
1102. 

Order granting new trial cannot be 
reviewed on appeal from final judgment 
obtained in second trial if notice of in- 
tention to appeal therefrom is not given 
as required by law. DePass v. Broad 
River Power Co., 173 S. C. 387; 176 S. 
E. 325. 

Awards under Workmen's Compensa- 
tion Act appealable to Supreme Court. 
— Provision of Workmen's Compensa- 
tion Act that judgment of the court of 
common pleas rendered in a workmen's 
compensation case shall have same effect, 
and all proceedings in relation thereto 
shall thereafter be the same as though 
judgment had been rendered in a suit 
duly heard and determined by court of 
common pleas, authorizes an appeal from 
judgment of court of common pleas to 
Supreme Court, and all proceedings in 
relation thereto after judgment of court 
of common pleas is rendered are the 
same as provided in Code of Procedure 
with reference to appeals from other 
judgments, including supersedeas provis- 
ions contained in the Code. McDonald 
et al. v. Palmetto Theaters et al., 196 
S. C. 38; 11 S. E. (2d) 444. 

Applied in Walker v. Quinn, 134 S. 
C. 510, 133 S. E. 444; Miller v. Atlantic 
Coast Line R. Co., 95 S. C. 471, 79 S. E. 
645; Ingram v. Hines, 126 S. C. 509, S. 
E. 493; Gunter v. Fallow, 78 S. C. 457, 59 
S. E. 70; State v. Shaw, 64 S. C. 566, 
569, 43 S. E. 14, 60 L. R. A. 801; Lampley 
v. Atlantic Coast Line R. Co., 77 S. C. 
319, 57 S. E. 1104. 

D. Subsection (3). 

Applies to collateral proceedings after 
judgment. — Subsection 3 of this section 
was intended to apply only to collateral 



§ 26 



Code of Civil Procedure 



Page 16 



proceedings arising after judgment. 
Kennedy v. City of Greenville, 78 S. C. 
124, 58 S. E. 989. 

And to matters of independent nature 
arising after judgment. — This subdivision 
was intended to provide a remedy where 
matters either of an independent nature, 
or collateral to any action, arise upon a 
special proceeding, and where matters 
arise upon a summary proceeding in an 
action after judgment. Cureton v. Hutch- 
inson, 3 S. C. 606, cited with approval 
in Kennedy v. City of Greenville, 78 S. 
C. 124, 58 S. E. 989. 

And was not intended to apply to 
motion for new trials. — The idea that 
this section was intended to apply to 
motions for new trials is negatived by 
a special provision in subdivision 2 on 
this identical subject. Kennedy v. City 
of Greenville, 78 S. C. 124, 58 S. E. 989. 

An error in granting a new trial can- 
not be reviewed on appeal from judg- 
ment on a subsequent trial. Kennedy v. 
City of Greenville, 78 S. C. 129, 58 S. E. 
989. 

See the anaylsis line, "order granting 
or refusing new trial," V, C, 3. 

"Special proceeding" is defined by 
statute. — The term "special proceeding" 
must be taken in the sense of the Code. 
It is defined in §§ 2 and 3. Allen v. 
Partlow, 3 S. C. 417, to which reference 
is hereby made. 

Rule against sheriff as to return of 
process is a special proceeding. — A pro- 
ceeding by rule against a sheriff touch- 
ing the return of process is a "special 
proceeding" and a final order thereon is 
in the nature of a final judgment, on ap- 
peal from which the court may revise 
any intermediate order in the same pro- 
ceeding involving the merits and neces- 
sarily affecting the judgment. Emory v. 
Davis, 4 S. C. 23. 

As is a proceeding to enforce an agri- 
cultural lien. — The seizure and sale of a 
crop under the agricultural lien laws as 
provided for by the Civil Code are a 
special proceeding within the meaning 
of this section. Johnston v. Manigault, 
13 S. C. 403. 

But order dissolving an attachment is 
not made in a special proceedings. — 
An order dissolving an attachment is not 
an order made in "a special proceeding" 
and hence is not appealable under this 
subsection. Allen v. Partlow, 3 S. C. 
417. 

Orders affecting a substantial right. — 
For numerous illustrations of orders held 
to affect a "substantial right" and those 
not affecting a substantial right, see the 
analysis line, "Judgment or order af- 
fecting a substantial right," V, C, 2. 

Order setting aside a homestead upon 
summary application after judgment af- 



fects a substantial right. — An order set- 
ting aside an assignment of a homestead 
made upon a summary application after 
judgment affects a substantial right and 
is appealable. Weatherly v. Jackson, 3 
S. C. 228. 

Orders in certiorari staying proceed- 
ing below is a final order. — Orders in 
certiorari permanently staying proceed- 
ings below is a final order. Coleman v. 
Keels, 30 S. C. 614, 9 S. E. 270. 

Orders refusing a writ of mandamus 
appealable. — An order refusing a writ of 
mandamus is appealable under this sec- 
tion. Ex parte Mackey, 15 S. C. 322, 
328. 

An order on quo warranto containing 
a preliminary injunction does not in- 
volve the merits. — An order on quo war- 
ranto containing a preliminary injunc- 
tion does not involve the merits and is 
not appealable under this subdivision. 
State v. Westmoreland, 29 S. C. 1, 6 S. 
E. 847. 

E. Subsection (4). 

Appeal from interlocutory order gant- 
ing temporary injunction lies. — An ap- 
peal lies from an interlocutory order 
granting a temporary injunction. Lamar 
v. Croft, 73 S. C. 407, 53 S. E. 540. See, 
also, Williams v. Jones, 62 S. C. 472, 40 
S. E. 881. 

Though questions of fact are involved. 
— In an action for an accounting, an or- 
der dissolving a temporary injunction 
and refusing to appoint a receiver would 
be reviewed on appeal, though ques- 
tions of fact were involved. Lyles v. 
Williams, 96 S. C. 290, 80 S. E. 470. 

But appeal does not lie after nuisance 
is abated. — An appeal from an order dis- 
solving a temporary injunction does 
not lie after such nuisance is abated. 
Wright v. Columbia, 77 S. C. 416, 57 S. E. 
1096. 

Refusal of interlocutory order of in- 
junction on grounds of jurisdiction ap- 
pealable. — The refusal of an interlocu- 
tory order of injunction to restrain the 
defendants from selling a house on the 
grounds of want of jurisdiction is ap- 
pealable. Salinas v. Aultman & Co. 
49 S. C. 325, 27 S. E. 385. 

Conclusions of circuit judge not to be 
disturbed unless clearly erroneous. — The 
appointment of a receiver and the grant- 
ing of an order of injunction are discre- 
tionary and the court will not disturb 
the conclusions of the circuit judge, un- 
less there has been an abuse of discre- 
tion showing that the order is clearly 
erroneous. Lyles v. Williams, 96 S. C. 
290, 80 S. E. 470. 

Applied as to denial of injunction, 
South Bound R. R. Co. v. Burton, 63 S. 
C. 348, 41 S. E. 451; Lamar v. Croft, 73 
S. C. 407, 411, 53 S. E. 540. 



Page 17 Supreme Court and Its Jurisdiction § 27 

§ 27. Powers in appeals — time file decisions — attach copy opinion to 
j udgment — fees. 

(1) Reverse, modify, etc., judgments or decrees. — The Supreme Court 
may reverse, affirm or modify the judgment, decree or order appealed from 
in whole or in part, and as to any or all of the parties, and the judgment 
shall be remitted to the court below to be enforced according to law. When 
a judgment or decree is reversed or affirmed by the Supreme Court, every 
point made and distinctly stated in the cause and fairly arising upon the 
record of the case shall be considered and decided, and the reason thereof 
shall be concisely and briefly stated in writing and preserved in the record 
of the case. 

(2) Time file decisions. — The justices of the Supreme Court shall file 
their decisions in sixty days from the last day of the court at which the 
cases were heard. 

(3) Clerk attach opinion to judgment — fees. — The clerk of the Supreme 
Court shall attach to the judgment remitted to the court below, a copy 
of the opinion of the Supreme Court, if any, rendered in such cases, and 
shall receive as his fee for services in remitting the judgment and opinion 
the sum of one dollar and fifty cents in each case, to be taxed against the 
losing party, by the clerk of the court of common pleas, and when col- 
lected, by any officer or attorney, shall be remitted to the clerk of the 
Supreme Court; and he shall be entitled to charge and collect a fee of one 
dollar and fifty cents for any opinion, judgment or order which he may 
furnish any party ordering same. 

1932 Code, § 27; Civ. P. '22, § 27; Civ. P. '12, § 12; Civ. P. '02, § 12; 1896 (22) 7; 
1904 (24) 389. 

The word "appellate" is impliedly Judgment when remitted to circuit 

used herein. — Under this section the court is unalterable by that court. — 

word "appelate," as impliedly used here- The judgment when remitted cannot be 

in, is a general and comprehensive term altered or modified in any form by the 

referring to all causes and questions over Circuit court but must be enforced to 

which the court was authorized to ex- the letter. Pringle v. Sizer, 3 S. C. 

ercise the power of review. Sandel v. 335, 337; Ex parte Dunovant, 16 S. C. 

State, 128 S. C. 178, 122 S. E. 571. 299, 300; Ex parte Knox, 17 S. C. 207, 

General jurisdiction in equity cases. — 217. 

The Supreme Court has jurisdiction in And needs no further action if af- 

an equity case to inquire if an interloc- firmed. — If the judgment be affirmed, it 

utory injunction is properly dissolved needs no further action by the Circuit 

and if there was an error in refusing to Court. Adger v. Pringle, 13 S. C. 33, 

appoint a receiver. Lyles v. Williams, 36. 

96 S. C. 290, 80 S. E. 470. Therefore, it But circuit court may enter an order 

has no power to grant leave to the de- where its judgment is varied or modi- 

fendant to answer over. Johnson v. hed. — If the judgment of the Circuit 

Dawkins, 20 S. C. 528, 533. Court is varied or modified by the Su- 

Court has inherent power to modify preme Court, and the judgment is remit- 

or vacate decree. — The inherent power ted to the Circuit Court such court may 

of the Supreme Court to modify or va- enter an order making the judgment of 

cate its decision during the term in the Supreme Court the judgment of the 

which it is made, and before its judg- Circuit Court. Adger v. Pringle, 13 S. 

ment is remitted to the Circuit Court C. 33, 36. 

is not doubted. Citizens Bank v. Hey- And the enforcement of the judgment 

ward, 144 S. C. 365, 142 S. E. 651. is unaffected by pending motion to recall 

But it can only affirm, reverse or re- remittitur. — The action of the Circuit 

mand for new trial in law cases. In a Court is not affected by any pending 

case at law the Supreme Court cannot motion to recall the remittitur, Adger 

modify the judgment below; it can only v. Pringle, 13 S. C. 33, 36, unless there 

reverse or affirm such judgment and re- are stay proceedings. The Circuit Court 

mand for a new trial if necessary. Has- is not bound to take notice of pending 

ford v. Wynn, 22 S. C. 309, 313. proceedings to have the judgment of 



§ 27 



Code of Civil Procedure 



Page 18 



the Supreme Court reviewed. Id. 

Nor may remittitur be returned to 
Supreme Court for correction of errors. 

■ — After a remittitur is once sent down, 
the Supreme Court has no further power 
to order it returned so as to correct such 
errors. Carpenter v. Lewis, 65 S. C. 400, 
403, 43 S. E. 881. 

The amount of the remittitur is res 
judicata after the case is sent down, and 
cannot be corrected on a second trial, 
though it appears that the calculation is 
erroneous. Carpenter v. Lewis, 65 S. C. 
400, 43 S. E. 881. See, also, Sullivan v. 
Speights, 14 S. C. 358. 

Because Supreme Court loses jurisdic- 
tion when remittitur is issued. — The Su- 
preme Court loses jurisdiction when the 
remittitur is issued, and not when filed 
below. Ex parte Dunovant, 16 S. C. 299, 
300; Brooks v. Brooks, 16 S. C. 621. 
And it cannot entertain a motion for re- 
hearing after it is issued. Sullivan v. 
Speights, 14 S. C. 358, 360; Ex parte 
Dial, 14 S. C. 584, 585. 

"Under the rules of this court when a 
case is heard here and determined, the 
remittitur to the court below is not sent 
down immediately, but is retained in ev- 
ery case for ten days, unless the court di- 
rects other wise; and on application 
showing sufficient cause either of the 
justices at chambers may direct by or- 
der that it be further retained until the 
third day of the next session. The ob- 
ject of this is to reserve jurisdiction 
over the case, so that, should either of 
the parties desire to make any motion in 
reference thereto, they might have the 
opportunity to do so, and the court the 
power to hear it. After the remittitur, 
however, is sent down, the case passes 
beyond the reach of the court, and its 
jurisdiction is lost, and no motion can 
be heard by this court on the matter 
thereafter." Sullivan v. Speights, 14 S. 
C. 358, quoted in Carpenter v. Lewis, 65 
S. C. 400, 43 S. E. 881. See, also, the 
authority therein cited. 

The Supreme Court has held that its 
control of the judgment ends when the 
remittitur has been sent down. State v. 
Adams, 83 S. C. 149, 65 S. E. 220, and the 
authorities there cited. 

Where the defendant had been con- 
victed of murder and had noted an 
appeal from such judgment, and the 
judgment was affirmed, and a remit- 
titur was acted on by the Circuit Court, 



and a day for the execution reassigned, 
it was too late for a motion to recall 
such remittitur for the purpose of a re- 
consideration of a petition for a rehear- 
ing. State v. Merriman, 35 S. C. 607, 
14 S. E. 394. 

Strong case must support motion to 
stay remittitur. — Where an applicant in 
a criminal case moves for a stay of re- 
mittitur with leave to make a motion 
below for a new trial, on the grounds of 
newly discovered evidence, at least a 
prima facie case must be made out in 
support of the motion; otherwise such 
motion must be dismissed. State v. 
Jacobs, 28 S. C. 608, 6 S. E. 577. 

A remittitur which states that the 
judgment below is affirmed is a sufficient 
transcript of the judgment above. Ex 
parte Dial, 14 S. C. 584, 586. 

And if stayed, court may entertain 
petition for rehearing. — The power of the 
Supreme Court to entertain petitions for 
a rehearing, while- the remittitur is being 
stayed has never been questioned. Citi- 
zen's Bank v. Heyward, 144 S. C. 365, 142 
S. E. 651. 

But petition for rehearing does not it- 
self stay remittitur. — The filing of a pe- 
tition for a rehearing does not stay re- 
mittitur; there must be an order from 
one of the justices. Ex parte Dunovant, 
16 S. C. 299, 300. But see Supreme Court 
Rule 17, which now changes such pro- 
cedure. 

And while stayed, the judgment is in 
control of court. — As long as the remit- 
titur is stayed, the judgment of the Su- 
preme Court is absolutely under the 
control of that court. Citizen's Bank v. 
Heyward, 144 S. C. 365, 142 S. E. 651, 
657. 

No original decisions can be made upon 
a point not ruled below. — This court can 
make no original decision upon a point 
not ruled upon below. Railroad Com. 
v. R. R. Co., 22 S. C. 220, 231. 

Court cannot originally determine right 
to counsel fees. — The court cannot orig- 
inally determine the right to counsel 
fees. Otis v. Brown, 20 S. C. 586. 

Remittitur which orders a new trial 
sets aside the judgment appealed from. 
— A remittitur which orders a new trial 
in effect sets aside the verdict and judg- 
ment appealed from. State v. Steph- 
ens, 13 S. C. 285, 287. 

As to the granting of new trials, see § 
34 and the note thereto. 



§ 28. Hearings. 

(1) Terms — notice — docketing. — The Supreme Court shall hold at least 
nine terms in each year at the seat of government, commencing on the 
second Mondays in each month, except the months of July, August and 
September, and each of said terms shall be continued for so long a period 
as the public interest may require. The court may also hold such additional 



Page 19 Supreme Court and Its Jurisdiction § 29 

number of terms or sessions as the public interest may require, the time 
and place therefor to be appointed and fixed by the court, ten days' notice 
of such time and place to be given to the attorneys or counsel appearing in 
the cases docketed, in such manner as the court by its rules or orders may 
provide. The court may by general rules prescribe and provide the order 
in which cases shall be docketed, and the priority thereof on the calendar, 
subject to the provisions of the following subsection 2. 

(2) Priority of appeals. — On a second and each subsequent appeal to the 
Supreme Court, or when an appeal has once been dismissed for defect or 
irregularity, the cause shall be placed upon the calendar as of the time of 
filing the first appeal and may be noticed and put on the calendar for any 
succeeding term; and whenever, in any action or proceeding in which the 
State or any state officer or any board of state officers is or are sole plaintiff 
or defendant, an appeal has been, or shall be, brought up from any judg- 
ment or order for or against him or them in any court, such appeal shall 
have preference in the Supreme Court and may be moved by either party 
out of the order on the calendar. 

(3) Disposition of appeals not reached. — If the cases on the calendar and 
set for hearing cannot be heard in the period allotted, the court shall con- 
tinue the same to be heard after the regular call of the cases for that session 
or may call an extra term for the hearing of the same or continue them to 
the next stated term thereafter. 

(4) Court may make rules. — The court shall have full power and 
authority to establish and promulgate such rules and regulations as may 
be necessary to carry into effect the provisions of this section and to facili- 
tate the work of the Supreme Court. 

(5) Docketing fees — taxation. — In all appeals, other than in criminal 

cases, the appellant shall, when the return is filed with the clerk of the 

Supreme Court, pay to said clerk a fee of three dollars to be retained by 

him as his compensation for docketing the cause and keeping counsel 

advised as to the time when the cause is to be called for hearing, as the 

court may provide in its rules; which fee shall be taxed against the losing 

party as a part of the costs and disbursements in the Supreme Court. 

1932 Code, § 28; Civ. P. '12, § 13; Civ. P. '02, § 13; 1870 (14) 314; 1896 (22) 1; 1897 
(22) 488; 1916 (29) 687; 1923 (33) 32. 

§ 29. Printing of testimony upon appeals to Supreme Court. — On all 

appeals to the Supreme Court from the county court, court of common 
pleas, and court of general sessions, when it is necessary to print the testi- 
mony, or any part thereof, the same shall be printed in question and answer 
form as taken by the official stenographer unless otherwise agreed to by 
parties or attorneys. Only the necessary and pertinent testimony to which 
one or more exceptions relate shall be printed, and in case more than the 
necessary testimony is printed, then the court shall tax the cost of all 
testimony unnecessarily printed against the offending party. 
1932 Code, § 29; 1923 (33)* 107. 

As to inability of party to pay for et al.. 163 S. C. 86; 161 S. E. 331. To 

printing of papers connected with ap- same effect, State v. Singletary, 167 S. C. 

peals, see § 779 and the note thereto. 543; 166 S. E. 725. 

Printing of entire record unnecessary. Where exceptions raise only questions 

where appeal is based on exceptions of law, not in any wise dependent for 

to judge's charge; only such as pertin- solution on the evidence, it is unneces- 

ent should be printed. Andrews v. Hurst, sary to print any of the evidence. Gar- 



§ 29 Code of Civil Procedure Page 20 

rison v. Coca-Cola Bottling Co., 174 S. requiring appellant to print the testi- 

C. 396; 177 S. E. 656. mony is not error, although very little 

But where exceptions raised question of testimony was essential to decision 

of motion for directed verdict, solution reached by Supreme Court. Kiriakides 

of which required that the testimony be v. Equitable Life Assur. Soc. of the 

included in record for appeal, order of United States, 174 S. C. 140; 177 S. E. 40. 
circuit judge settling case for appeal and 

§ 30. Number to agree to constitute a judgment — when circuit judges to 
sit also. — In all cases decided by the Supreme Court the concurrence of 
three of the justices shall be necessary for a reversal of the judgment below; 
subject to the provisions hereinafter prescribed. Whenever upon the hear- 
ing of any cause or question before the Supreme Court, in the exercise of 
its original or appellate jurisdiction, it shall appear to the justices thereof, 
or any three of them, that there is involved a question of constitutional law, 
or of conflict between the Constitution and laws of this State and of the 
United States, or between the duties and obligations of her citizens under 
the same, upon the determination of which the entire court is not agreed; 
or whenever the justices of the said court, or any two of them, desire it on 
any cause or question so before said court, the Chief Justice, or in his 
absence the presiding associate justice, shall call to the assistance of the 
Supreme Court all the judges of the circuit court: provided, that when 
the matter to be submitted is involved in an appeal from the circuit court 
the circuit judge who tried the case shall not sit. A majority of the justices 
of the Supreme Court and circuit judges shall constitute a quorum. The 
decision of the court so constituted, or a majority of the justices and judges 
sitting, shall be final and conclusive. In such case the Chief Justice, or in 
his absence the presiding associate justice, shall preside. Whenever the 
justices of the Supreme Court and the judges of the circuit court meet to- 
gether for the purposes aforesaid, if the number thereof qualified to sit 
constitute an even number, then one of the circuit judges must retire, and 
the circuit judges present shall determine by lot which of their number 
shall retire. Whenever the circuit judges are called to sit with the justices 
of the Supreme Court for the determination of any cause or causes, the 
actual traveling and other expenses of each judge so attending shall be paid 
by the Governor out of his civil contingent fund upon an itemized state- 
ment made out and certified to by each judge. 

1932 Code, § 30; Civ. P. '22, § 29; Civ. P. '12, § 14; Civ. P. '02, § 14; 1870 (14) 314. 

Construction of the term en banc as ticular causes or questions. Citizen's 

used in notes to this section. — The term Bank v. Heyward, 144 S. C. 365, 142 S. 

"court en banc" as used in the following E. 651. 

constructions of this section is but a Which loses its jurisdiction on decid- 

designation of the Supreme Court sitting ing the question submitted. — The court 

with the circuit judges as provided for en banc has no fixed terms and loses 

under this section. For a history of the jurisdiction when it has answered the 

term, see Citizen's Bank v. Heyward, 144 questions submitted by filing with the 

S. C. 365, 142 S. E. 651. clerk of the Supreme Court, its written 

The court en banc is a consultative decision signed by a majority of the 

one. — The court en banc differs material- justices and judges. Its functions are 

ly from the Supreme Court, in that it is then exhausted. Hinson v. Pickett, 2 

merely a consultative one, like the Eng- Hill Eq. 355, quoted in Citizen's Bank 

lish Court of Exchequer Chamber, v. Heyward, 144 S. C. 365, 142 S. E. 651. 

whose judgments are authoritative Circuit judges not called unless one of 

though the suitor had no right to appeal named contingencies exist. — Where 

to it. The court en banc is called into neither contingency as provided for by 

existence by the justices of the Supreme this section for the calling in of the cir- 

Court, only when they may desire to cuit judges occurs the Circuit Court will 

consult with the circuit judges as to par- not be called in merely because the Su- 



Page 21 Supreme Court and Its Jurisdiction § 33 

preme Court is divided, and the parties ate justices, sitting as the Supreme 

desire an authoritative determination of Court, cannot set aside or in any wise 

the question involved. City of Florence lessen the force and effect of a judg- 

v. Brown, 49 S. C. 332, 27 S. E. 273. ment rendered by the court sitting en 

Supreme Court cannot modify or set banc composed of the Supreme Court 

aside a judgment of the court en banc. — justices and the circuit judges. State 

The chief justice and the three associ- v. Adams, 83 S. C. 149, 150, 65 S. E. 220. 

§ 31. Sheriffs provide rooms, etc. — If, at any term of the Supreme 
Court, proper and convenient room both for the consultation of the judges 
and the holding of the court, with furniture, attendants, fuel, lights and 
stationery, suitable and sufficient for the transaction of its business, be not 
provided for in the place where by law the court may be held, the court 
may order the sheriff of the county to make such provision, and the 
expenses incurred by him in carrying the order into effect shall be paid 
from the state treasury. 

1932 Code, § 31; Civ. P. '22, § 30; Civ. P. '12, § 15; Civ. P. '02, § 15; 1870 (14) 495. 

§ 32. Places hold courts — adjournment. — The Supreme Court may be 
held in other buildings than those designated by law as places for holding 
courts, and at a different place, at the same city or town, from that at 
which it is appointed to be held. Any one or more of the judges may 
adjourn the court with the like effect as if all were present. 

1932 Code, § 32; Civ. P. '22, § 31; Civ. P. '12, § 16; Civ. P. '02, § 16; 1870 (14) 314. 



CHAPTER 2 

The Circuit Courts 

Article 1. Circuit Courts and Judges, § 33. 
Article 2. Circuits and Terms of Courts, § 50. 



ARTICLE 1 
Circuit Courts and Judges 

33. When open. 42. Neglect of duty. 

34. New trials. 43. Disability of judges. 

35. Change of venue. 44. Special judges. 

36. 37. Judges' power at chambers. 45. Juries for special court. 

38. Powers in other circuits. 47. Salary of special judge. 

39, 40. Duties. 48, 49. Stenographer. 
41. Salaries. 

§ 33. Always open for certain purposes. — The circuit courts shall be 
deemed always open, for the purpose of issuing and returning mesne and 
final process and commissions, and for making and directing all inter- 
locutory motions, orders, rules and other proceedings whatever, prepara- 
tory to the hearing of all causes pending therein upon their merits; and it 
shall be competent for any judge of the said courts, upon reasonable notice 
to the parties, in the clerk's office or at chambers, and in vacation as well 
as in term, to make, direct, and award, all such process, commissions, and 
interlocutory orders, rules, and other proceedings, whenever the same are 



§ 33 



Code of Civil Procedure 



Page 22 



not grantable of course, according to the rules and practice of the court. 

1932 Code, § 33; Civ. P. '22, § 32; Civ. C. '12, § 3830; Civ. C. '02, § 2733; G. S. 2112; 
R. S. 2244; 1868 (14) 136. 



As to general powers of judges at 
chambers, see § 37 and the note thereto. 

Editor's Note. — This section has almost 
always been cited in connection with 
§ 37 which pertains to the power of 
circuit judges at chambers. The prac- 
titioner should refer, therefore, to the 
annotations placed under § 37. The 
note to the instant section is confined 
to those cases involving orders which 
bear upon the preparation of the hear- 
ing of causes upon the merits, though 
such orders may have been entered in 
chambers. The major treatment of the 
subject of the power of judges at cham- 
bers is reserved for the note to § 37. 

Section is calculated to facilitate the 
hearing of cases. — It was said in the dis- 
senting opinion in the case of Simms v. 
Phillips, 46 S. C. 149, 24 S. E. 97, that 
the very object of the section was to 
enable a circuit judge at chambers to 
grant all such preliminary orders as are 
necessary or calculated to facilitate the 
hearing of cases upon their merits when 
the proper time arrives for that purpose. 

"Other proceeding whatever" is broad 
and extensive term. — In the dissenting 
opinion in the case of Simms v. Phillips, 
46 S. C. 149, 24 S. E. 97, it was said that 
the term "other proceedings whatever" 
is very broad and extensive and was no 
doubt intended to include all orders 
necessary to prevent delay at the hear- 
ing. See, also, Ellen v. Ellen, 26 S. C. 
99, 1 S. E. 413. 

Order granting alimony pendente lite 
is an interlocutory one. — An order grant- 
ing alimony pendente lite is an inter- 
locutory one within the meaning of this 
section. Messervy v. Messervy, 80 S. C. 
277, 61 S. E. 442. The granting of such 
an order does not involve the determi- 
nation of the merits of the case. Id. 

Writs of assistance may be granted at 
chambers. — A writ of assistance, to en- 
able the sheriff to put the purchaser at a 
judicial sale in possession, may be grant- 
ed at chambers. Murchison v. Miller, 
64 S. C. 425, 42 S. E. 177; Ex parte 
Quails, 71 S. C. 87, 50 S. E. 646. 



Order bringing in new parties may be 
granted at chambers. — An order bring- 
ing in new parties to an action as pro- 
vided for by law may be granted at 
chambers. Hellams v. Prior, 64 S. C. 543, 
43 S. E. 25. 

So also an order amending a complaint. 

— This section, it is true does not ex- 
pressly give to a judge at chambers the 
power to amend a complaint but we 
think the general power given to make, 
direct, and award process commissions, 
and interlocutory orders, and other pro- 
ceedings whatever, preparatory to the 
hearing of all cases pending in the courts, 
necessarily includes the power to amend 
a complaint. Ellen v. Ellen, 26 S. C. 
99, 1 S. E. 413; cited in the dissenting 
opinion in Simms v. Phillips, 46 S. C. 
149, 24 S. E. 97. 

Order of reference for purpose of tak- 
ing testimony granted at chambers. — 

An order of reference for the purpose of 
taking testimony as to the amount due in 
an action of foreclosure may be made 
at chambers in a county other than that 
in which the action is pending if prop- 
erly granted on notice. Bank v. Fennell, 
55 S. C. 379, 33 S. E. 485. See, also, the 
dissenting opinion in the case of Simms 
v. Phillips, 46 S. C. 149, 24 S. E. 97. 

Issues involving examination of long 
accounts may be referred at chambers. — 
A judge at chambers has power without 
consent to refer issues involving exami- 
nation of long accounts. Montague v. 
Best, 65 S. C. 455, 43 S. E. 963. 

Motion for discontinuance may be 
heard and granted at chambers. — A mo- 
tion for discontinuance may be heard 
and granted at chambers under this sec- 
tion and § 37. Shelton v. Southern R. 
R., Carolina div., 80 S. C. 74, 61 S. E. 220. 

Receiver's certificates issuable at 
chambers. — A judge has power at cham- 
bers, under this section, to authorize the 
issuance of receiver's certificates. State 
v. Port Royal & A. Ry. Co., 45 S. C. 413, 
23 S. E. 363; Hixson v. Floyd, 73 S. C. 202, 
53 S. E. 167. 



§ 34. May grant new trials — rules. — Circuit courts shall have power to 
grant new trials in cases where there has been a trial by jury for reasons 
for which new trials have usually been granted in the courts of law of this 
State; and they shall have power to administer all necessary oaths or 
affirmations, and punish, by fine or imprisonment, at the discretion of said 
courts, all contempts of authority in any cause or hearing before the same, 
and to make and establish all necessary rules for the orderly conducting of 
business in said courts: provided, such rules are not repugnant to the laws 



Page 23 



Circuit Courts and Judges 



§ 34 



of the State or the rules prescribed by the justices of the Supreme Court 
and circuit judges. 

1932 Code, § 34; Civ. P. '22, § 33; Civ. C. '12, § 3831; Civ. C. '02, § 2734; G. S. 2113; 
R. S. 2245; 1868 (14) 136. 



Editor's note. — This section was taken 
unchanged from the Code of 1922 where- 
in it composed § 33 of the Code of Civil 
Procedure. 

Prior to the adoption of the Constitu- 
tion of 1868 and the act from which 
this section was taken, the circuit courts 
in this State had no power to grant new 
trials. That could be done only by the 
Supreme Court. But under the Consti- 
tution of 1868 and the present Constitu- 
tion, the provisions of which are sub- 
stantially if not identically the same as 
those of the Constitution of 1868, the 
power to grant new trials, which is an 
appellate power, State v. David, 14 S. C. 
428, 430, is denied to the Supreme Court, 
which has appellate jurisdiction only in 
equity cases (see § 26, subd. D), and its 
power in law cases is limited to the cor- 
rection of errors of law. See Southern 
Power Co. v. White, 92 S. C. 219, 75 S. 
E. 459, and the authority therein cited. 

Section should be liberally construed. 
— This section should be liberally con- 
strued as to the granting of new trials. 
Elmore v. Scurry, 1 S. C. 139. 

Circuit court's power said to be in- 
herent. — It has been said that the power 
to grant new trials in cases tried by the 
circuit courts was one of their inherent 
powers. State v. Bailey, 1 S. C. 1; State 
v. David, 14 S. C. 428, 430; cited in Sou- 
thern Power Co. v. White, 92 S. C. 219, 
75 S. E. 459. See, also, State v. Williams, 
108 S. C. 295, 93 S. E. 1006. 

Power not deprived by constitutional 
guaranty of trial by jury. — The consti- 
tutional guaranty of a trial by jury does 
not deprive the circuit court of the 
power to set aside a verdict fixing the 
compensation in condemnation pro- 
ceedings and grant a new trial. South- 
ern Power Co. v. White, 92 S. C. 219, 75 
S. E. 459. 

Section applies to cases which are 
properly before court. — The power to 
grant new trial as given to the circuit 
court under this section is given only 
in those cases which are properly be- 
fore it and not in cases where the courts 
have been divested of jurisdiction by ap- 
peal to the Supreme Court, although the 
appeals have been disposed of and the 
remittitur sent down. State v. Hawkins, 
121 S. C. 290, 114 S. E. 538. 

As to effect of remittitur from Su- 
preme Court after case is reviewed on 
appeal, and the duty of the circuit court 
to enforce the judgment, see § 27 and 
the note thereto. 



The power may be exercised by court 
"or judge." — It is true that this section, 
standing alone, purports to confer au- 
thority to hear and determine motions 
for new trials only upon the "circuit 
courts." The section must however be 
read in connection with §§ 36 and 37, 
which confer upon regular and special 
judges the authority to exercise at 
chambers all powers and jurisdiction 
which they have and exercise in open 
court, "except for the determination of 
such matters as necessitate trial by jury." 
The exception, just quoted, would not, 
of course, apply to the determination of 
motions for new trials. So that, mo- 
tions for new trials may now be present- 
ed to and heard by circuit judges at 
chambers or in open court. See State 
v. Hawkins, 121 S. C. 290, 114 S. E. 538, 
541, saying that motions for new trials 
upon after discovered evidence should 
be made to the circuit court "or judge." 
And see State v. David, 14 S. C. 428, 
which though decided prior to the 1925 
amendment of § 37, said that such mo- 
tions may be made to the circuit courts 
"or judges." 

In State v. Chavis, 34 S. C. 132, 13 S. 
E. 317, decided prior to the amendment 
of § 37, it was said that the power to 
hear motions for new trials given by 
this section is conferred upon the circuit 
courts and not upon judges, and there- 
fore a judge in chambers has no power 
to grant a new trial in a criminal case 
on the ground of newly discovered evi- 
dence, the court also saying that the dis- 
tinction between the powers of circuit 
courts and judges at chambers is well 
recognized, especially in regard to mo- 
tions for a new trial. 

And it is properly presented to the cir- 
cuit court or judge. — A motion for a 
new trial upon after-discovered evidence 
in a case in which the circuit court 
has not been deprived of its jurisdiction 
by appeal or otherwise, should be made 
before the circuit court or judge. State 
v. Hawkins, 121 S. C. 290, 114 S. E. 538. 

But if case pending on appeal a mo- 
tion to suspend the appeal is necessary. 
— If the case is pending on appeal to the 
supreme court a motion should be made 
before that court to suspend the appeal 
in order that the motion for a new trial 
may be made before the circuit court 
or judge. State v. Hawkins, 121 S. C. 290, 
114 S. E. 538. 

And if appeal is concluded then mo- 
tion for new trial is made in Supreme 



§ 34 



Code of Civil Procedure 



Page 24 



Court. — If the appeal has been concluded 
and the remittitur has been sent down, a 
motion should be made in the Supreme 
Court, and not elsewhere, for the defend- 
ant to be allowed to make the motion 
for a new trial. If the motion is shown to 
be meritorious the Supreme Court will 
take proper steps to enable the defend- 
ant to make his motion for a new trial 
upon after-discovered evidence before 
the Circuit Court, the only court that 
may hear such motions upon their mer- 
its. State v. Hawkins, 121 S. C. 290, 114 
S. E. 538. 

Motion must be made within reason- 
able time. — The motion for a new trial 
must be made at a time that will rea- 
sonably admit of the consideration of 
the motion before the day assigned for 
an electrocution, for instance, or at such 
time before such day as shall be pre- 
scribed by a rule of the Supreme Court. 
But even if the motion in such case 
should be made at a time as will not ad- 
mit of its consideration before the day 
fixed for the electrocution the court will 
nevertheless entertain it if the defend- 
ant shall upon proper showing to the 
Governor procure a temporary respite 
from the sentence, thereby giving the 
court time in which to consider the pre- 
liminary motion referred to. State v. 
Hawkins, 121 S. C. 290, 114 S. E. 538. 

But no specific time is provided for. — 
The statute empowering the circuit 
courts to grant new trials on after-dis- 
covered evidence does not limit the time 
within which the motion must be made. 
Sams v. Hoover, 33 S. C. 401, 12 S. E. 
8, quoted in State v. Williams, 108 S. C. 
295, 93 S. E. 1006. 

The granting of the motion lies in dis- 
cretion of court. — A judge has discre- 
tionary power to grant new trials on aft- 
er-discovered testimony, State v. David, 
14 S. C. 428; Tarrant v. Gilletson, 14 S. 
C. 620; State v. Workman, 15 S. C. 540; 
Durant v. Philpot, 16 S. C. 116; Waring 
v. R. R., 16 S. C. 416; Sams v. Hoover, 33 
S. C. 401, 12 S. E. 8, in suits of equity as 
well as in actions at law. Durant v. Phil- 
pot, 16 S. C. 116; Covington v. Coving- 
ton, 47 S. C. 263, 25 S. E. 193. 

And this is true even after affirmance 
on appeal. — Even after judgment has 
been affirmed on appeal, it is within the 
discretionary power of the Circuit Court 
to grant a new trial on the ground of 
newly-discovered evidence. State v. Lee, 
80 S. C. 367, 61 S. E. 657, cited in State 
v. Williams, 108 S. C. 295, 93 S. E. 1006. 

And the exercise thereof will not 
usually be disturbed. — In the considera- 
tion of a motion for a new trial for after- 
discovered evidence the circuit judge 
may exercise his discretion and his de- 
cision will not be disturbed on appeal 
unless the alleged after-discovered evi- 



dence is so lacking in merits that the 
granting of a new trial would amount 
to a clear abuse of his discretion. State 
v. Hawkins, 121 S. C. 290, 114 S. E. 538. 
See the authority therein cited. 

Unless the court committed an error 
of law. — If the order of the judge in 
granting or refusing a new trial is based 
upon an error of law, then his ruling on 
the motion is subject to review and may 
be set aside. See State v. Hawkins, 121 
S .C. 290, 114 S. E. 538, and the authori- 
ties cited there. See, also, Hall v. North- 
western R. Co., 81 S. C. 522, 62 S. E. 
848. 

The granting or refusing a motion for 
a new trial, made on the ground that the 
verdict is excessive, is within the discre- 
tion of the circuit judge, and this court 
will not disturb his conclusions unless 
the order was based on an error of law. 
Hall v. Northwestern R. Co., 81 S. C. 
522, 62 S. E. 848. 

The decision of a trial judge in grant- 
ing a new trial on the ground that the 
verdict was excessive does not involve 
a question of law and will not be dis- 
turbed on appeal. Stuckey v. Atlantic 
Coast Line R. Co., 57 S. C. 395, 35 S. E. 
550. 

Or unless abuse of discretion is appar- 
ent. — An order granting a new trial be- 
cause the verdict is against the great 
weight of testimony will not be disturbed 
unless abuse of discretion is shown. 
Darlington Oil Co. v. Pee Gee Oil Co., 
68 S. C. 46, 46 S. E. 720. 

And the burden is on the appellant to 
show an abuse of discretion. — The bur- 
den is upon the appellant to show that 
there has been some abuse of such dis- 
cretion. Darlington Oil Co. v. Pee Gee 
Oil Co., 68 S. C. 46, 46 S. E. 720. 

But no abuse of discretion is shown 
where a trial judge refuses to substitute 
his judgment for that of the jury. — It is 
no abuse of discretion for a trial judge 
to decline to substitute his judgment on 
on the facts for that of the jury. Mc- 
Ghee v. Wells, 57 S. C. 280, 35 S. E. 529. 

And this is true even though the judge 
if trying the issue would have reached 
different conclusion. — It is not an error 
of law for the court to refuse a motion 
for a new trial even though the court in 
trying the fact would have reached a dif- 
ferent conclusion on the evidence before 
the jury. McGhee v. Wells, 57, S. C. 280, 
35 S. E. 529. 

Or would have allowed a different re- 
covery. — A new trial should not be 
granted merely because the judge would 
have found a less amount than that 
found by the jury, unless the opinion of 
the judge amounts to a clear and fixed 
conviction that injustice has been done 
by an excessive verdict. Hall v. North- 
western R. Co., 81 S .C. 522, 62 S. E. 848; 



Page 25 



Circuit Courts and Judges 



§ 34 



Bodie v. Charleston & W. C. Ry. Co., 
66 S. C. 302, 44 S. E. 943. 

But arbitrary conditions cannot be im- 
posed upon granting of motion. — An 

abandonment of appeal cannot be im- 
posed as a condition for a new trial. Hall 
v. N. W. R. R. Co., 81 S. C. 522, 62 S. E. 
848. Nor can any arbitrary conditions be 
imposed. Jackson v. So. Oil Co., 81 S. C. 
564, 62 S. E. 854. 

Judge's conclusion as to new trial is 
therefore usually conclusive. — The 
judge's conclusion as to the new trial 
when founded on the facts at trial is 
final. Brickman v. R. R., 8 S. C. 173; 
Steele v. R. R., 11 S. C. 589; Warren v. 
Lagrove, 12 S. C. 45; Steele v. R. R., 14 
S. C. 324; Woods v. R. R., 19 S. C. 579; 
McGhee v. Wells, 57 S. C. 280, 35 S. E. 
529, 532. 

But the denial of motion is not con- 
clusive as to facts and grounds subse- 
quently presented. — The right to a new 
trial on newly-discovered testimony, 
when sufficient, is as fully settled and 
guaranteed by law as any other right 
and cannot be lost because a new trial 
had been once refused upon facts wholly 
different from and not involving this 
newly-discovered testimony. State v. 
Williams, 108 S. C. 295, 93 S. E. 1006. 

New trial as to one of several causes 
of action applies to all if verdict is gen- 
eral. — Where a new trial is granted as to 
one cause of action, and the verdict is a 
general one, it is also granted as to the 
other causes of action involved in the 
case. Lampley v. Atlantic Coast Line 
Co., 63 S. C. 462, 41 S. E. 517. 

Where a general verdict is rendered 
which is against one defendant and is in 
favor of the other defendant, the grant- 
ing of a new trial as to one, continues 
the case as to the other. Barfield v. 
Coker & Co., 73 S. C. 181, 53 S. E. 170, 
and the authorities therein cited. 

New trials permissible where exces- 
sive verdicts rendered. — It is well settled 
that the power to grant new trials as 
given by this section extends to the 
granting of new trials for excessive ver- 
dicts in actions of tort for unliquidated 
damages, on condition that the plaintiff 
shall refuse to remit the amount ad- 
judged to be excessive. Nettles v. Harri- 
son, 2 McCord, 230, cited in Hall v. 
Northwestern R. Co., 81 S. C. 522, 62 S. 
E. 848. See, also, authority therein cited. 

Or where verdict gives inadequate 
damages. — The modern rule is that a 
new trial may be granted, in actions for 
torts when the verdict is grossly inade- 
quate, for the same reasons as those gov- 
erning where the verdict is excessive. 
Bodie v. Charleston, etc., Ry. Co., 66 S. 
C. 302, 44 S. E. 943. 

If it is apparent that injustice has been 
done. — When the circuit, judge has a 



clear conviction that injustice has been 
done by an excessive verdict then it is 
his duty to relieve the injustice by or- 
dering a new trial. Hall v. Northwestern 
R. Co., 81 S. C. 522, 62 S. E. 848. 

Unless the excess is remitted. — Where 
an excessive verdict has been rendered, 
a new trial should be granted if the par- 
ty refuses to remit the excess. Hall v. 
Northwestern R. Co., 81 S. C. 522, 62 S. 
E. 848. 

And the amount of the verdict cannot 
be reduced without allowing option of 
a new trial nisi. — An order of the cir- 
cuit judge is erroneous if it reduces the 
amount of the verdict without allowing 
the plaintiff the option of a new trial 
nisi. Gwathmey v. Foor Hotel Co., 121 
S. C. 237, 113 S. E. 688. See, generally, 
the numerous authorities therein cited. 

An error in the amount of the verdict 
should be corrected by a new trial. Wil- 
son v. R. R., 16 S. C. 587, 592; Levi v. 
Legg, 23 S. C. 282. 

New trial should be granted where 
jury disregards charges of the judge. — 
In a case where the jury disregards the 
judge's charge a new trial should be 
granted. Dent v. Bryce, 16 S. C. 1, 14; 
Thompson v. Lee, 19 S. C. 489. 

Variance between testimony and in- 
dictment is ground for new trial. — A 
new trial is the remedy where there is 
a variance between the testimony and 
a material allegation of the indictment. 
State v. Hamilton, 17 S. C. 462. 

Legitimate rules of circuit courts have 
the force of law and must be complied 
with. — Rules of circuit courts made un- 
der this section which are not repugnant 
to or in conflict with law, have all the 
force of law and must be complied with. 
State v. Atterberry, 129 S. C. 464, 124 
S. E. 648. 

And it is doubtful whether they may 
be suspended by Supreme Court. — The 
circuit court having power under this 
section to make its own rules, there is 
doubt that this court has the power to 
suspend them in a particular case. State 
v. Atterberry, 129 S. C. 464, 124, S. E. 
648. 

Amend verdict. — See § 605, and for 
full discussion, Anderson v. Aetna Cas- 
ualty and Surety Co., 175 S. C. 254, 178 
S. E. 819. 

Oath administered to witness by de 
facto deputy clerk not within this sec- 
tion. State v. Brandon, 186 S. C. 448; 
197 S. E. 113. 

New trial on after discovered evidence 
properly granted where only witnesses 
who observed alleged incident did not 
make their knowledge known until after 
trial. Rikard v. Great Atlantic & Pacific 
Tea Co., 165 S. C. 355; 164 S. E. 11. 

Contempt. — Sentence of 90 days to 
county jail of juror for contempt in vio- 



§ 34 



Code of Civil Procedure 



Page 26 



lating court's instruction by discussing 
case with others during court recess is 
justified. State v. Babb, 161 S. C. 305, 
159 S. E. 633. See also No. 339. 

Motion over telephone without no- 
tice. — Granting a new trial on ex parte 
motion over telephone after case dispos- 
ed of without notice or hearing is error. 
Barton v. Scott, 165 S. C. 491, 164 S .E. 
129. 



Granting of motion for new trial on 

grounds verdict not sustained by evi- 
dence, is not appealable, if based on 
trial judge's view of the facts; other- 
wise, if ruling based on law. Morrison 
v. South Carolina State Highway De- 
partment, 181 S. C. 258; 187 S. E. 344. 
For statute pertaining to the change of 
place of trial, see § 426 and the note 
thereto. 



§ 35. Change of venue — when and how made. — The circuit courts shall 
have power to change the venue in all cases, civil and criminal, pending 
therein, and over which said courts have original jurisdiction, by ordering 
the record to be removed to another county in the same circuit. The appli- 
cation for removal must be made to the judge sitting in regular term by 
some party interested, or by the solicitor of the circuit or accused, supported 
by affidavit that a fair and impartial trial cannot be had in the county 
where such action or prosecution was commenced. The State shall have 
the same right to make application for a change of venue that a defendant 
has in cases of murder, arson, rape, burglary, perjury, forgery or grand 
larceny: provided, no change of venue shall be granted in such cases until 
a true bill has been found by a grand jury. Four days notice of such 
application in civil and criminal cases shall be given to the adverse party, 
and if a change is ordered, it shall be to a county in the same judicial 
circuit: provided, further, that such adverse party to whom said notice 
is given shall have the right to waive the same; and the circuit judge shall 
have the power, upon application made to him by either party, upon 
proper cause shown, to shorten or extend the time for the hearing of such 
application for a change of venue. 

1932 Code, § 35; Civ. P. '22, § 34; Civ. C. '12, § 3832; Civ. C. '02, § 2735; G. S. 2114; 
R. S. 2246; 1870 (14) 839; 1896 (22) 12; 1905 (24) 845. 



For statute pertaining to the change 
of place of trial, see § 426 and the 
note thereto. 

Editor's note. — It is difficult to under- 
stand how it can be said to be technical- 
ly correct, in a criminal case, to speak of 
a change in the venue. The venue is a 
material averment in the indictment, 
State v. Addison, 2 S. C. 356, 361, and 
cannot be altered by the court. The 
grand jury is sworn and their present- 
ments and bills are limited to matters 
within the county for which they sit. 
The term "change of venue" has, in 
some way, crept into the law books and 
into legislative acts. As it is used in this 
section it means no more than a change 
of the trial from the county in which the 
bill was found, to some other within the 
jurisdiction of the court. In fact, the lan- 
guage of this section gives the construe 
tion which it intends by the use of the 
words "to change the venue," for it 
authorizes the change to be made by or- 
dering the record to be removed, for 
trial, to some other county within the 
circuit. The practitioner is especially re- 
ferred to the note to § 426 providing for 
the change of place of trial upon speci- 



fied grounds. 

Change of venue is discretionary with 
court. — The power to change the venue 
as provided for under this section is dis- 
cretionary. Taylor v. Williamson, Mc- 
Mul. Eq. 348; State v. Coleman, 8 S. C. 
238; McFail v. Barnwell County, 54 S. 
C. 368, 32 S. E. 417; TJtsey v. Charleston, 
etc., R. Co., 38 S. C. 399, 17 S. E. 141. 

But it is a judicial and not an arbi- 
trary discretion — State v. Davis, 138 S. 
C. 532, 137 S. E. 139, 140; State v. Fran- 
cis, 152 S. C. 17, 149 S. E. 348, 352, citing 
State v. Jackson, 110 S. C. 273, 96 S. E. 
416. 

And should be exercised only for 
cause shown. — The exercise of the pow- 
er granted under this section must be for 
a good and sufficient cause shown. Tay- 
lor v. Williamson, McMul. Eq. 348; 
Blakely v. Frazier, 11 S. C. 122. 

In a capital case it is not sufficient 
cause to change the venue to show that 
a sum of money has been raised by sub- 
scription by some of the citizens of the 
district to apprehend the criminal, he 
having escaped from custody. State v. 
Williams, 2 McCord 383. 

In the case of State v. Davis, 138 S. C. 



Page 27 



Circuit Courts and Judges 



35 



532, 137 S. E. 139, it was held that a mo- 
tion for a change of venue was erron- 
eously refused, in view of a showing of 
a strong sentiment against defendant in 
the county where the offense was com- 
mitted. 

A change of venue was granted where 
the sheriff was the brother of the person 
killed by the defendant, had taken part 
in the drawing of jurors, by his deputy 
had served them, and had just been re- 
elected to his office for a term of four 
years. State v. Sullivan, 39 S. C. 400, 
17 S. E. 865, cited in State v. Martin, 
155 S. C. 495, 152 S. E. 738. 

But where the sheriff has no personal 
interest or personal connection with the 
prosecution a change of venue will not 
be granted. State v. Martin, 155 S. C. 
495, 152 S. E. 738, 739. 

For other illustrations of what consti- 
tutes a sufficient showing that a fair 
and impartial trial cannot be had, the 
practitioner is referred to the authorities 
cited throughout this note, which in the 
main has been confined to the general 
principles applicable to the provisions of 
this section. — Editor's Note. 

And the affidavits should be strong. — 
The affidavits provided for by this sec- 
tion should be strong. State v. Williams, 
2 McC. 383, and this is true even in civil 
cases. Id. 

But oral testimony of witnesses in 
open court may be used. — The provi- 
sions of this section that the application 
for removal be "supported by affidavits, 
etc.," are complied with when witnesses 
are introduced in open court, and sworn 
by the presiding judge, and their state- 
ments, at the time and place, are reduc- 
ed to writing by the official stenograph- 
er. State v. Sullivan, 39 S. C. 400, 17 
S. E. 865. 

And review lies only where discretion 
is abused. — Where there is no abuse of 
discretion shown in granting a change of 
venue, the Supreme Court will not con- 
sider whether a proper showing was 
made in the court below authorizing the 
granting of the motion. Carroll v. Char- 
leston & S. R. Co., 61 S. C. 251, 39 S. E. 
364; Gower v. Thomson, 6 S. C. 313; 
Parker v. Grimes, 9 S. C. 284; Blakely v. 
Frazier, 11 S. C. 122. 

Named ground for change of venue is 
exclusive. — This section relates only to 
a change of venue because a fair and 
impartial trial cannot be had in the 
county of the venue and the section does 
not give the courts power to change the 
venue on the other grounds specified in 
§ 426, subdivisions 1 and 3. Hanley v. 
Charleston Light & Power Co., 110 S. C. 
340, 96 S. E. 519. 

And the "Promotion of Justice" may 
not be used as ground for change. — A 
judge at chambers has no power under 



this section to grant a change of venue 
on the ground that the end of justice 
would be promoted thereby. Castles v. 
Lancaster County, 74 S. C. 512, 55 S. E. 
115. 

But section does not affect court's 
power to change the place of trial. — 
This section was not intended, nor does 
it affect, the power of the court to re- 
move causes for the reasons state in sub- 
division 1 and 3 of § 426. Handley v. 
Charleston Light and Water Co., 110 S. 
C. 340, 96 S. E. 519. 

As to when the place of trial may be 
changed, see § 426 and note thereto. 

Time for filing applications. — Both the 
court of general sessions and of common 
pleas may be open at the same time, and 
hence an application for a change of 
venue may be heard after the opening 
of the court of common pleas. State v. 
Hunter, 79 S. C. 91, 60 S. E. 226. 

In regard to a motion for a change of 
the venue in a civil case, because it was 
not laid in the proper county, a differ- 
ence of practice has obtained between 
the courts of New York and those of 
England. In the latter it must be made 
before plea filed. — 10 Bac, Title Venue, 
E., 371. But in the former it will be en- 
tertained even after issue joined, where 
no delay or loss of trial will be the con- 
sequence. — Delavan v. Baldwin, 3 
Caines, 104; Kent v. Dodge, 3 John. 447. 
State v. Addison, 2 S. C. 356, 361, 363. 

Motions for a change of venue may be 
made before answer on four days' no- 
tice where wrong county is named in 
the complaint. Fishburne v. Minott, 72 
S. C. 572, 52 S. E. 646. 

Four days' notice must be given. — 
This section originally provided for the 
giving of twenty days' notice of applica- 
tion for change of venue. See Willough- 
by v. Northeastern R. Co., 46 S. C. 317, 
24 S. E. 308. This section as it now 
stands is in conformity with § 448, pro- 
viding for the giving of four days' no- 
tice of the filing of motions. — Ed. Note. 

In a case where the defendant was ar- 
raigned on the 9th day of the month 
and the trial was set for the 12th, the 
last day of the term, it was held that 
there was no error in denying the mo- 
tion then made for the first time for a 
continuance on the grounds that the ar- 
raignment was so delayed that it was 
impossible to give the required notice 
for a change of venue. State v. Bethune, 
86 S. C. 143, 67 S. E. 466. 467. 

As to the computation of time, see § 
821 and note thereto. 

Motion may be heard at chambers. — 
A judge at chambers has power to make 
an order for a change of venue. Utsey v. 
Charleston S. & N. R. Co., 38 S. C. 399, 
17 S. E. 141; Dennis v. McKnight et al., 
161 S. C. 213; 159 S. E. 557. 



§ 35 



Code of Civil Procedure 



Page 28 



Attention is called to the fact that § 37 
was amended by act of 1925, so as to 
enable judges at chambers to exercise 
the same power and jurisdiction as they 
exercise in open court, with certain ex- 
ceptions therein mentioned. — Ed. note. 

Change of venue allowed even though 
only one county composes the circuit. — 
Under the provision in this section say- 
ing that a change of venue shall be to a 
county in the same judicial circuit, 
where there was but one county in the 
judicial circuit it was said that a change 
of venue is a common law right and the 
court is bound to grant it unless that 
right is taken away by some express 
statute. The judge had a right to grant 
such a change in view of Const. Art. I, § 
5, and Const. U. S. Amend. 14 §§ 1, and 
426 of the Code of Civil Procedure. State 
v. Harvey, 128 S. C. 494, 122 S. E. 860. 

Granting of motion serves to stay pro- 
ceedings in original court. — Where a 
change of venue was granted, a stay of 
proceedings in the original court follow- 
ed as a necessary result without any mo- 
tion therefor. Fishburne v. Minott, 72 
S. C. 572, 52 S. E. 646. 

Presentation of motion is a waiver of 
irregularity in drawing grand jury. — 



Motion for a change of venue brought 
after, as required by law, the return of 
a true bill by the grand jury, was held 
to be a waiver of an irregularity in the 
drawing of the grand jury where the er- 
ror complained of was not jurisdiction- 
al and the defendant was estopped to 
deny that the bill was valid. State v. 
Richardson, 149 S. C. 121, 146 S. E. 676. 

Prejudice existing in county from 
which removal is sought, need not be 
directed solely against applicant for 
change of venue, but can exist in favor 
of opposing litigant such as to prevent 
applicant from receiving a fair and im- 
partial trial. Johnston v. Belk-McKnight 
Co., of Newberry, S. C, Inc., 194 S. C. 
490; 10 S. E. (2nd) 1. 

Alleged fraudulent joining of defend- 
ant for purpose of securing jurisdiction 
cannot be taken advantage of when rais- 
ed for first time by exceptions to order 
refusing change of venue. Anderson v. 
Boughman, 167 S. C. 164; 166 S. E. 83. 
Evidence should be taken, as in Adams 
v. Fripp, 108 S. C. 234; 94 S. E. 109. 

Failure to docket case does not pre- 
vent court's hearing motion for change 
of venue. Dennis v. McKnight et al., 161 
S. C. 213; 159 S. E. 557. 



§ 36. Powers of circuit judges at chambers as to writs, demurrers, equity 
cases, etc. — The judges of the court of common pleas shall have power at 
chambers to grant writs of prohibition, mandamus and certiorari, and to 
hear and determine demurrers and motions to set aside or stay execution 
in the same manner, in every respect as if the court were actually sitting, 
and with the consent of all such adult parties as may have answered, or 
their attorneys, in a cause, and of the guardian ad litem of infants therein; 
to hear and determine any matter not properly triable before a jury, and 
the persons, respectively, shall have the same right of appeal as if the deci- 
sion was made in open court; they may hear and determine actions for 
partition and foreclosure suits when not contested, either within or without 
the county where the land in question lies, and may grant all writs and 
processes in such actions at chambers, in like manner with the same effect 
as are now granted in term time, with the consent of all such adult parties 
as may have answered or their attorneys, and of the guardian ad litem of 
infants therein, and in default cases not requiring the verdict of a jury 
may render judgment as in open court. 

In all contested equity cases when the testimony has all been taken, any 
party may have the case heard and determined by any judge within the 
circuit in which the case is pending, at chambers as fully and effectually as 
if heard in open court by giving the adverse party or parties, or their 
attorneys ten days written notice of time and place of such hearing. 

1932 Code, § 36; 1922 (32) 903. 

Ed. note. — Due to the similarity of tions to the two sections have been plac- 
this section to § 37 all of the annota- ed under the latter section. 



Page 29 Circuit Courts and Judges § 37 

§ 37. Powers of circuit and special judges at chambers — authority in 
adjoining circuit. 

(1) Stated. — All regular and special judges shall have at chambers in 
any county within the circuit in which they are resident or in the circuit 
in which they are assigned to hold court, all powers and jurisdiction, which 
they have and exercise in open court in any county within said circuit, 
except for the determination of such matters as necessitates trial by jury. 
They may hear and determine actions for partition and foreclosure suits 
and all other equity matters concerning real estate whether within or 
without the county where the land in question lies: provided, in all con- 
tested matters the adverse party shall be entitled to notice of the time and 
place of any hearing at chambers, which notice when not otherwise fixed 
by statute or rule, shall be at least ten days prior thereto. And provided 
further, that no hearing, except with consent, shall be had outside the 
judicial circuit of the judge having jurisdiction; and provided further, that 
where the service is made by publication the ten days' notice of application 
for judgment may be inserted in the first or any subsequent publication 
or mailed at the last known residence of the defendant or defendants: 
and provided further, that in all other cases except by consent, and in parti- 
tion and foreclosure suits and cases where summons are served by publica- 
tion, the notice of the application for judgment shall not be made until after 
the time for answering or making return has expired: and provided further, 
that circuit judges shall have the power to grant orders and decrees in 
cases arising in the circuit in which they may be at the time the presiding 
judges therein or resident judges thereof when they are temporarily absent 
from the circuit; provided, that this provision shall not be construed so as 
to nullify or limit any other powers conferred on circuit judges by any one 
or more provisions of this section. Provided, further, that circuit judges 
shall have the power to hear appeals from magistrates' courts and/or 
municipal courts to the courts of general sessions, and the court of common 
pleas, upon notice herein required being given for the hearing of the same. 

(2) Judge of adjoining circuit to have jurisdiction when no resident or 
special judge is on circuit. — In case any judicial circuit is without a resident 
judge, by reason of death, absence, disqualification or otherwise and no 
other judge, special or regular, is presiding therein, then jurisdiction in all 
matters arising in such circuit is conferred upon and shall be exercised by 
the resident judge of the adjoining circuit or by any judge presiding 
therein; and any judge exercising such jurisdiction shall first satisfy him- 
self of the necessity of same by affidavit of the moving party. \ 

1932 Code, § 37; Civ. P. '22, § 35; Civ. C. '12, § 3833; Civ. C. '02, § 2736; G. S. 2115- 
R. S. 2247; 1818 (7) 321; 1882 (28) 38; 1887 (19) 813; 1891 (20) 1123; 1899 (23) 30; 
1908 (25) 1055; 1920 (31) 806; 1921 (32) 281; 1925 (34) 94; 1930 (36) 1247; 1933 (38) 
50; 1937 (40) 79. 

Cross reference. — As to purposes for reference are very closely related to the 
which the circuit court shall always be provisions of the instant section. The 
deemed open, see § 33 and note thereto, practitioner will no doubt find it help- 
As to motions and orders generally, see ful to read the respective annotations 
§ 817 and note thereto. For certain pow- placed under those sections, in connec- 
ers at chambers given to the Justices of tion with the following note, 
the Supreme Court and the judges of the Successful bidder at a foreclosure sals 
circuit courts by the State Constitution, a "party" within the meaning of this 
see article V, § 25, State Constitution. section. — A successful bidder at a fore- 
Editor's note. — The provisions of the closure sale is a "party" within the 
sections mentioned in the above cross meaning of this section and as such is 



§ 37 



Code of Civil Procedure 



Page 30 



entitled to the ten days' notice herein 
provided for. Blatt v. Blount, 121 S. C. 
78, 113 S. E. 467, 469. 

Judge at chambers has no jurisdiction 
to hear a motion to vacate a judgment. — 
See the above catchline under § 817, 
subd. 2, where the cases of Turner v. 
Foreman, 47 S. C. 31, 24 S. E. 989; Bank 
v. Mellett, 44 S. C. 383, 22 S. E. 444, 445; 
Clawson v. Hutchinson, 14 S. C. 517; 
Charles v. Jacobs, 5 S. C. 348, are 
treated. 

Nor can a final order given in court 
be vacated at chambers. — In a case 
where a judge issued a writ of certiorari 
from the court of common pleas, and an 
order entered on the return of such writ, 
restraining permanently a magistrate 
from issuing his warrant to eject a ten- 
ant it was held that such order was final, 
and that it could not be vacated by a 
circuit judge at chambers, not even by 
the judge who presided at court when 
such order was made, unless it was pro- 
cured by fraud or misrepresentation. 
Coleman v. Keels, 30 S. C. 614, 9 S. E. 
270. 

A judgment cannot be corrected at 
chambers without the consent of parties. 
— A judge at chambers has no power or 
jurisdiction to correct a judgment of the 
circuit court without the consent of all 
the parties. Middleton v. Denmark Ice 
and Fuel Co., 97 S. C. 457, 81 S. E. 157. 
See, also, the authority therein cited. 

A judge cannot grant a perpetual in- 
junction at chambers against the consent 
of the party, Hornsby v. Burdell, 9 S. C. 
303, or until the issues of the action 
have been heard and determined. Id. 

An order of sale in partition suit may 
be granted at chambers without the con- 
sent of the parties in interest. Woodward 
v. Elliot, 27 S. C. 368, 3 S. E. 477. 

Written consent of parties is unneces- 
sary. — It is said in Pearson v. Breeden, 
79 S. C. 302, 60 S. E. 706, that wherever 
the consent of the parties is necessary 
for the exercise at chambers of the pow- 
ers given by this section, such consent 
need not be in writing. 

Jury trial cannot be given at cham- 
bers in quo warranto. — It was said in 
the case of State v. Gibbes, 109 S. C. 135, 
95 S. E. 346, 348, that a judge at cham- 
bers in a quo warranto proceeding could 
not have given the parties a jury trial. 

Application for mandamus cannot be 
heard out of circuit. — A circuit judge 
while holding court in a circuit other 
than his own has no jurisdiction to hear 
and determine at chambers, in such cir- 
cuit an application for mandamus in a 
cause which arose in his circuit. State 
v. Smith, 50 S. C. 558, 27 S. E. 933. 

Nor may a demurrer be heard in coun- 
ty other than that in which action is 



pending. — A judge of another county 
than that in which the action is pend- 
ing does not have jurisdiction to hear 
and determine a demurrer pertaining to 
that action in chambers. Hernlin v. Peo- 
ple's Bank, 135 S. C. 313, 133 S. E. 549. 

Nonresident judge at chambers may 
order a jury drawn while presiding in 
the circuit. — See the above catchline un- 
der § 38, where the case of State v. Pow- 
ers, 59 S. C. 200, 37 S. E. 690, 692, is 
treated. 

Motion for discontinuance may be 
heard and granted at chambers. — See 
the above catchline under § 33 where 
the case of Shelton v. Southern R. R., 
Carolina Div., 80 S. C. 74, 61 S. E. 220 
is treated. 

Receiver's certificate issuable at cham- 
bers. — See the above catchline under § 
33 where the cases of State v. Port Royal 
& A. Ry Co., 45 S. C. 413, 23 S. E. 363; 
Dixson v. Floyd, 73 S. C. 202, 53 S. E. 
167, are treated. 

Order granting alimony pendente lit* 
is an interlocutory order. — See the above 
catchline under § 33 where the case of 
Messervy v. Messervy, 80 S. C. 277, 61 S. 
E. 442, is treated. 

Resident judge of circuit had jurisdic- 
tion to give default judgment, when re- 
cord showed action was triable in anoth- 
er county in same circuit. Mclnnis v. 
Caulk, 176 S. C. 399; 180 S. E. 340. 

This section, as regards circuit judge's 
jurisdiction in adjoining circuit, not sup- 
seded by statute for filling circuit judge 
vacancies (§ 44). Winn v. Harby et al., 
166 S. C. 99, 164 S. E. 434. 

Circuit court could not assume juris- 
diction in adjoining circuit for circuit 
judge's disqualification, where such ad- 
joining circuit had three other courts in 
session. Ibid. 

Matters which may be heard without 
jury may be heard by judge of adjoin- 
ing circuit in his own circuit. Ibid. 

Record must show compliance with 
statute, including absence of resident 
judge and fact that no other judge, spec- 
ial or regular, is presiding in the circuit, 
in order that judge of an adjoining cir- 
cuit may exercise jurisdiction. Ex parte 
Hart et al, 186 S. C. 125; 195 S. E. 253. 

Where affidavits mistakenly alleged 
that resident judge was absent from cir- 
cuit, and orders were signed by judge 
of adjoining circuit, the latter had no 
jurisdiction of subsequent proceeding to 
vacate such orders, in absence of further 
showing that resident judge was absent. 
Ibid. 

Nor did judge of adjoining county 
have jurisdiction to vacate orders signed 
by him after they had been filed in 
county in which action was brought. 
Ibid. 



Page 31 



Circuit Courts and Judges 



§ 39 



Change of venue. — Motion for change 
of venue may be heard by circuit judge 



at chambers. Dennis v. McKnight et al., 
161 S. C. 213; 159 S. E. 557. 



§ 38. Powers of judges holding courts in other circuits. — Every judge, 
while holding the circuit court for any circuit pursuant to the provisions of 
the law of this State, shall be invested with powers equal to those of the 
judge of such circuit, and may hear and determine all causes and motions 
and grant all orders in open court or at chambers which it is competent for 
the judge residing in such circuit to hear, determine, or grant, any law, 
usage, or custom to the contrary notwithstanding. 

1932 Code, § 38; Civ. P. '22, § 36; Civ. C. '12, § 3834; Civ. C. '02, § 2737; G. S. 2116; 
R. S. 2248; 1878 (16) 395. 



Cross reference.- — As to power of cir- 
cuit court and special judges at cham- 
bers, see § 37 and note thereto. As to the 
purposes for which the circuit courts 
shall always be deemed open, see § 33 
and note thereto. As to motions and 
orders generally, see § 817 and note 
thereto. As to special sessions of circuit 
courts, see § 69 and note thereto. As to 
provision where a judge is unable to 
hold court, see § 44 and note thereto. 

Section should be construed with § 69. 
— This section should be construed with 
§ 69 of this Code. Section 69 of this Code 
should be regarded as a limitation upon 
the general powers of circuit judges 
when only an extra term of court is 
being held. Sims v. Phillips, 46 S. C. 
149, 24 S. E. 97, 99. 

Jurisdiction of special judge may be 
limited to the county to which he is com- 
missioned. — A special judge whose com- 
mission is limited to a particular county 
has no jurisdiction to try matters aris- 
ing elsewhere in the circuit. Evans v. 
Town of Edgefield, 132 S. C. 380, 129 S. 
E. 207, 210. 



Under this section and § 39, a judge is 
given no jurisdiction to grant a writ of 
certiorari in a case tried in another cir- 
cuit while the judge thereof is holding 
court therein. State v. Black, 34 S. C. 194, 
13 S. E. 361, 364. 

And only such business as appears on 
the calendar may be transacted. — When 
a judge is assigned for a special term of 
court he can transact no other business 
than that on the calendar. Sims v. Phil- 
lips, 46 S. C. 149, 24 S. E. 97, 99. 

A non-resident judge may make an or- 
der at chambers requiring a jury to be 
drawn, while presiding in the circuit. 
State v. Powers, 59 S. C. 200, 37 S. E. 
690, 692. 

Motion for discontinuance may be 
heard and granted at chambers. — See 
the above catchline under § 33 where 
the case of Shelton v. Southern R. R., 
Carolina Div., 80 S. C. 74, 61 S. E. 220, is 
treated. 

Cited but not construed in State v. 
Williams, 52 S. C. 416, 29 S. E. 814, 815; 
In re Doran, 129 S. C. 26, 123 S. E. 501, 
503. 



§ 39. Judges discharge all duties on circuits. — Every circuit judge in 
this State shall at all times have jurisdiction to discharge and perform all 
the duties of his office within the circuit wherein he resides, except the 
holding of circuit courts therein when some other circuit judge shall be 
engaged in holding said courts. 

1932 Code, § 39; Civ. P. '22, § 37; Civ. C. '12, § 3835; Civ. C. '02, § 2738; G. S. 2117; 
R. S. 2249; 1878 (16) 395. 



Cross references. — As to the power of 
the justices of the Supreme Court and 
the judges of the circuit court at cham- 
bers as given by the State Constitution, 
see article V, § 25. As to power of cir- 
cuit and special judges at chambers, see 
§ 37 and note thereto. As to power of 
judges holding court in other circuits, 
see § 38 and note thereto. 

Editor's note. — Sections 13 and 14 of 
article V of the State Constitution should 
be read in connection with this and the 
preceding section. State v. Smith, 50 S. 
C. 558, 27 S. E. 933, 934. 

Judge sitting in one circuit cannot de- 



termine mandamus proceeding arising 
in another circuit. — A judge cannot hear 
and determine at chambers in another 
circuit an application for a writ of man- 
damus in a case arising within his own 
circuit. State v. Smith, 50 S. C. 558, 27 
S. E. 933. 

This section was cited in support of 
the conclusion that the court of com- 
mon pleas while sitting in one circuit, 
has no jurisdiction over a case pending 
in another circuit. State v. Smith, 50 
S. C. 558, 27 S. E. 933, 934. 

Jurisdiction of special judge may be 
limited to the county to which he is 



§ 39 Code of Civil Procedure Page 32 

commissioned. — See the above catchline signs an order of bail outside of his cir- 

under § 38 where the cases of Evans v. cuit for a prisoner of his circuit does not 

Town of Edgefield, 132 S. C. 380, 129 S. necessarily show that he heard the ap- 

E. 207, 210; State v. Black, 34 S. C. 194, plication beyond his circuit. State v. 

13 S. E. 361, 364, are treated. Satterwhite, 20 S. C. 536. 

Evidential value of signing of order Cited but not construed in Shelton v. 

outside of circuit. — The fact that a judge Southern Ry., 80 S. C. 74, 61 S. E. 220. 

§ 40. Not absent themselves from State without permission. — No circuit 
judge shall absent himself from this State without leave first granted in 
writing by the Chief Justice or presiding associate justice. 

1932 Code, § 40; Civ. P. '22, § 38; Civ. C. '12, § 3836; Civ. C. '02, § 2739; G. S. 2119; 
R. S. 2250; 1877 (16) 229. 

§ 41. Salaries of judges. — All circuit judges, who are elected after the 
14th day of March, 1935, shall receive an annual salary of six thousand 
seven hundred fifty ($6,750.00) dollars a year. 

1932 Code, § 41; Civ. P. '22, § 39; Civ. C. '12, § 3837; Civ. C. '02, § 2740; G. S. 2420; 
R. S. 2351; 1893 f21) 417; 1919 (31) 101; 1929 (36) 7; 1935 (39) 88. 

Payment of salaries of circuit judges, tion 9, and article X, section 9, State 
— See annotations under article V, sec- Constitution. 

§ 42. Amenable for neglect of duty as to holding terms, etc. — proceed- 
ings. — If any circuit judge shall fail or neglect to hold the term or terms of 
any court of general sessions or common pleas in any circuit to which he 
may be assigned until the business of said courts shall have been disposed 
of, or the end of the term, or terms, arrives, or shall fail to recognize and 
obey the order of assignment of the Chief Justice or presiding associate 
justice, or shall violate any provisions of this chapter, the attorney general 
of the State shall, upon any reliable information of the same, by official 
communication, bring such violations of this chapter to the notice of the 
General Assembly at its first session, and such circuit judge shall be held 
amenable to proceedings for neglect of duty, as provided in the Con- 
stitution. 

1932 Code, § 42; Civ. P. '22, § 40; Civ. C. '12, § 3838: Civ. C. '02, § 2741; G. S. 2124; 
R. S. 2255; 1877 (16) 229. 

§ 43. Judges notify Chief Justice of inability or disability to hold court. — 

It shall be the duty of each circuit judge, when disabled by sickness or 
other cause to hold any court to which he may be assigned, to give, or cause 
to be given, prompt notice of such inability or disability to the Chief 
Justice, so that his place may be temporarily filled and the court held 
according to law. 

1932 Code, § 43; Civ. P. '22, § 41; Civ. C. '12, § 3839; Civ. C. '02, § 2742; R. S. 2256; 
1892 (21) 4. 

Cited but not construed in Haughton E. 393. 
v. Order of U. C. T., 108 S. C. 73, 90 S. 

§ 44. Special judges — appointment — powers. — Whenever any circuit 
judge, pending his assignment to hold the courts of any circuit, shall 
die, resign, be disabled by illness, or shall be excused for any other reason 
considered sufficient in the opinion of the Chief Justice of the Supreme 
Court, and likewise in case of a vacancy in the office of circuit judge of any 
circuit, or if a special session of the court of general sessions or common 
pleas be ordered as provided for in section 69, the Chief Justice of the 



Page 33 Circuit Courts and Judges § 44 

Supreme Court may assign any other disengaged circuit judge to hold the 
courts of any such circuits, to fill any appointment made necessary by such 
vacancy or to hold any special session of the circuit court that may be 
ordered by the Chief Justice. And in the event there be no other disengaged 
circuit judge available to hold said courts, then the Governor shall immedi- 
ately commission as special judge such persons learned in the law, as shall 
be recommended by the Supreme Court, or by the Chief Justice thereof if 
the Supreme Court be not in session, to hold the courts of any such circuit, 
or to hold any special session thereof which may be ordered by the Chief 
Justice, as aforesaid. 

Should there be a vacancy in the office of Chief Justice of the Supreme 
Court, or in case of his absence from the State, or in case of his illness or 
incapacity from whatever cause, then the power and authority vested and 
the duties imposed upon the Chief Justice by the provision of this section 
and section 69 shall be exercised and discharged by the senior associate 
justice of the Supreme Court in point of service who is at the time within 
the State and is not ill or otherwise incapacitated, and his acts in exercising 
said powers and discharging said duties shall be as effectual as though 
performed by the Chief Justice of the Supreme Court. 

Whenever a special judge shall be appointed to hold any court, he shall 
have and exercise all the powers and duties that a regular judge would 
have if presiding. 

Whenever the time fixed for holding any of the courts of general sessions 
or common pleas of this State shall be found not sufficient for the trial of 
all cases before said court, a like assignment of a disengaged circuit judge, 
or commission of a special judge, may be had to hold the court to which 
the judge then holding such over crowded court may have been in due 
course next assigned, and the term of such overcrowded court shall pro- 
ceed until the cases before it are disposed of. 

1932 Code, § 44; Civ. P. '22, § 42; Civ. C. '12, § 3840; Civ. C. '02, § 2743; G. S. 2f23; 
R. S. 2254; 1896 (22) 11; 1925 (34) 5; 1929 (36) 258; 1931 (37) 257; 1935 (39) 55. 

Cross reference. — As to special ses- this section and § 69 is not an absolute 

sions of circuit courts, see section 69 and power but is controlled by considera- 

note thereto. tions which safeguard the rights and in- 

Editor's note. — It appears that this terests of those whose rights and inter- 
section originated in the act of 1799. ests will be determined by such tri- 
By that act the governor was authorized bunal. State v. Gossett, 117 S. C. 76, 108 
to appoint and commission some fit and S. E. 290, 292, 16 A. L. R. 1299. 
proper person to sit as judge in case any And it is a discretionary power. — It is 
of the judges on the circuit should hap- a discretionary power to be exercised 
pen to be sick or become unable to hold as a judicial function. State v. Gossett, 
the court in his circuit. See Taylor v. 117 S. C. 76, 108 S. E. 290, 292, 16 A. L. 
Shrine, 3 Brev. 516; cited in Norton v. R. 1299. 
County, 6 Supt. Ct. 1128. The appointment of a special judge is 

Formerly provisions were made in a not essentially an executive function. — 

separate section for a special court of The appointment of a special judge to 

general sessions when a request was preside over the special or regular court 

made therefor by the solicitor to the is not essentially and intrinsically an 

Governor. See State v. Gallman, 79, S. C. executive function, within the classifica- 

229, 60 S. E. 682, 684. tion of legislative, executive, and judic- 

Section is constitutional. — The power ial powers under Article I, § 14, of the 

thus conferred by section 69 and this constitution, but may be regulated by 

section is easily sustainable under the statute. State v. Davis, 88 S. C. 204, 70 

provisions of the constitution, Article V, S. E. 417, 419. 

§ 6. State v. Gossett, 117 S. C. 76, 108 Appointment of special judge without 

S. E. 290, 292, 16 A. L. R. 1299. the suggestion of supreme court void. 

Power herein conferred is not an ab- — The governor has no power, under this 

solute one. — The power conferred by section and § 69, to commission a special 

I.-S.C.-2 



§ 44 



Code of Civil Procedure 



Page 34 



judge not recommended by the Supreme 
Court, or chief justice if the Supreme 
Court be not in session. State v. Davis, 
88 S. C. 204, 70 S. E. 417, 419. 

Power of Governor to appoint a spe- 
cial judge to hold the regular term of a 
given county questioned. — In view of 
the provisions of this section it is ques- 
tionable whether the governor has the 
power to appoint a special judge to hold 
the regular term of the court for a given 
county. It appears that in such case the 
appointment can be made only for the 
courts of the circuit, and not for the 
court of a particular county. Evans v. 
Town of Edgefield, 132 S. C. 380, 129 
S. E. 207, 209. 

Holding over court for more than a 
week beyond the date fixed for its ad- 



journment was not error in view of this 
section. State v. Bigham, 133 S. C. 491, 
131 S. E. 603, 611. See also, State v. Un- 
derwood, 127 S. C. 1, 120 S. E. 719; State 
v. Gregory, 127 S. C. 87, 120 S. E. 499. 

Confining of special term to disposi- 
tion of cases on criminal docket does not 
render order nugatory. — Because the 
special term of the court of general ses- 
sions, ordered, by the governor under 
this and the following section was need- 
lessly confined to the disposition of all 
cases on the criminal docket such fact 
did not render the order nugatory. State 
v. Gallman, 79 S. C. 229, 60 S. E. 682. 

Cited but not construed in Haughton v. 
Order of U. C. T. of A., 108 S. C. 73, 93 
S. E. 393; State v. Henderson, 136 S. C. 
363, 134 S. E. 364. 



§ 45. Clerk notify authorities and jurors of special terms. — When notified 
of such appointment, the clerk of the said court shall notify the proper 
authorities, and the grand jury shall be summoned to attend, if it be a court 
of sessions, and a petit jury shall be drawn and summoned, if jury cases 
are to be tried, in the regular manner, for the purpose of said court, and as 
the same may be necessary, and the clerk shall notify said special judge 
of the time fixed for holding said special term of court. 

1932 Code, § 45; Civ. P. '22, § 43; Civ. C. '12, § 3842; Civ. C. '02, § 2745; 1900 (23) 
329. 



Cross reference. — As to the appoint- 
ment of special judges, see § 44 and note 
thereto. 

Publication of notice is unnecessary. — 
It is not necessary that formal notice 
of a special term called by the governor 
be published by the clerk over his sig- 
nature. State v. Davis, 88 S. C. 204, 70 
S. E. 417. 

And notification of proper authorities 



by clerk is presumed. — It must be pre- 
sumed in absence of anything to the con- 
trary on the holding of a special term 
presided over by a special judge that the 
proper authorities were notified by the 
clerk and everything was conducted in 
a regular manner. State v. Davis, 88, S. 
C. 204, 70 S. E. 417, 419. 

Cited but not construed in State v. 
Gallman, 79 S. C. 229, 60 S. E. 682. 



§ 47. Salary of special judge. — The special judge shall be allowed for his 
services ten dollars per day and his necessary expenses, and the same per 
diem for not exceeding five days for the preparation of his decrees. 

1932 Code, § 47; Civ. P. '22, § 45; Civ. C. '12, § 3844; Civ. C. '02, § 2747; 1900 (23) 
329. 

§ 48. Stenographer for special term of court — appointment. — It shall be 
lawful for the presiding judge at any special term of the circuit court, 
where the official stenographer is performing the duties of his office at a 
court then being held in some other county of the circuit to appoint a 
stenographer for said term of the court, who shall perform the duties of 
the office of court stenographer for said term of court. 

1932 Code, § 48; Civ. P. '22, § 46; Civ. C. '12, § 3845; Civ. C. '02, § 2748; 1900 (23) 
329. 



§ 49. Stenographer appointed for special term of court — compensation. — 

The stenographer appointed under the provision of the foregoing section 
shall receive the same compensation as that allowed by law to the official 
stenographer in proportion to the time of service, to be paid out of the 



Page 35 Circuits and Terms of Courts § 51 

county treasury, upon the warrant of the clerk of the court, approved by 
the presiding judge, and also the usual fees for copies of testimony and 
reports of court proceedings, to be paid by the parties ordering the same. 
1932 Code, § 49; Civ. P. '22, § 47; Civ. C. '12, § 3846; Civ. C. '02, § 2749; 1900 (23) 
329. 



ARTICLE 2 

Circuits and Terms of Courts 

50. Fourteen circuits. 63. Thirteenth circuit. 

51. First circuit. 64. Fourteenth circuit. 

52. Second circuit. 64.-1. Jurisdiction of judges presiding at 

53. Third circuit. terms beginning last Monday in April. 

54. Fourth circuit. 65 and 66. General sessions and common 

55. Fifth circuit. pleas. 

56. Sixth circuit. 67 and 71. Adjournment. 

57. Seventh circuit. 68. Call off terms of common pleas. 

58. Eighth circuit. 69. Special sessions. 

59. Ninth circuit. 70. Petit jurors. 

60. Tenth circuit. 72. Oath. 

61. Eleventh circuit. 73. A court of record. 

62. Twelfth circuit. 74. Clerk and deputy clerk. 

§ 50. State divided into fourteen circuits. — The State is divided into four- 
teen judicial circuits as follows: 

The first circuit shall be composed of the counties of Calhoun, Dorchester 
and Orangeburg. The second circuit shall be composed of the counties of 
Aiken, Bamberg and Barnwell. The third circuit shall be composed of the 
counties of Clarendon, Lee, Sumter and Williamsburg. The fourth circuit 
shall be composed of the counties of Chesterfield, Darlington, Marlboro and 
Dillon. The fifth circuit shall be composed of the counties of Kershaw and 
Richland. The sixth circuit shall be composed of the counties of York, 
Chester, Lancaster and Fairfield. The seventh circuit shall be composed of 
the counties of Cherokee, Spartanburg and Union. The eighth circuit shall 
be composed of the counties of Abbeville, Greenwood, Laurens and New- 
berry. The ninth circuit shall be composed of the counties of Charleston 
and Berkeley. The tenth circuit shall be composed of the counties of Ander- 
son and Oconee. The eleventh circuit shall be composed of the counties of 
Lexington, McCormick, Saluda and Edgefield. The twelfth circuit shall be 
composed of the counties of Florence, Georgetown, Horry and Marion. The 
thirteenth circuit shall be composed of the counties of Greenville and 
Pickens. The fourteenth circuit shall be composed of the counties of Allen- 
dale, Hampton, Colleton, Jasper and Beaufort. 

1932 Code, § 50; Civ. P. '22, § 48; Civ. P. '12, § 17; Civ. P. '02, § 17; 1912 (27) 827; 
1914 (28) 579, 636; 1916 (29) 688, 717; 1919 (31) 5; 1870 (14), § 17; 1868 (14) 5, 72; 1869 
(14) 198; 1872 (15) 146; 1878 (16) 376; 1871 (14) 659, § 2; 1882 (17) 682; 1889 (20) 518; 
1871 (14) 696, § 6; 1897 (22) 583, § 10 and 597, § 5; 1897 (22) 592, § 7; 1897 (22) 609, 
§ 11; Con., 1895, page 96 and 1896 (22) 250, § 6; 1899 (23) 31, § 5; 1898 (22) 879; 1899 
(23) 179, § 4; 1908 (25) 1002, 1283; 1910 (26) 867; 1926 (34) 1041; 1927 (35) 68; 1931 
(37) 51. 

§ 51. Courts in first circuit. 

(1) Terms. — The courts of the first judicial circuit shall be held in the 
several counties of said circuit as follows: 

(a) Calhoun County. — The court of general sessions for Calhoun County 
shall be held at St. Matthews as follows: on the fourth Monday in May; first 



§ 51 Code of Civil Procedure Page 36 

Monday in December; and the court of common pleas for the said county 
shall be held at St. Matthews on the fourth Monday in April, the fourth 
Monday in September, without jury, and the third Monday in November. 
And in addition to the terms of the court of common pleas above provided 
for there shall be terms of such court during each of the weeks in which 
there are fixed terms of court for the court of general sessions, and immedi- 
ately upon the conclusion of the business of the court of general sessions 
such court shall open, and the petit jurors drawn to serve in the court of 
general sessions shall serve as petit jurors in the court of common pleas, 
and at such terms any and all business may be transacted as may be done 
at any other term of the court of common pleas. 

(b) Dorchester County. — The court of general sessions for the county of 
Dorchester shall be held at St. George on the first Monday in April and the 
third Monday in October. The court of common pleas for the said county 
shall be at St. George on the third Monday in April, the third Monday 
in May and the second Monday in November, the duration of said courts 
shall be for one week each; and also a court of common pleas at the said 
place on the second Monday in July, without a jury. 

(c) Orangeburg County. — The court of general sessions for the county of 
Orangeburg shall be held at Orangeburg the first Monday in January, two 
weeks; first Monday in May, two weeks; second Monday in September, two 
weeks. The court of common pleas for the county of Orangeburg shall be 
held at Orangeburg on the third Monday in March, two weeks; first Mon- 
day in June, two weeks, the first Monday in October, two weeks. 

1932 Code, § 51; Civ. P. '22, § 49; Civ. P. '12, § 18; Civ. P. '02, § 18; 1886 (19) 473; 
1898 (22) 684; 1901 (23) 624; 1908 (25) 1010; 1909 (26) 230; 1911 (27) 88; 1912 (28) 771, 
772; 1913 (28) 117; 1915 (29) 387, 547; 1916 (29) 690; 1917 (30) 145; 1919 (31) 238; 1921 
(32) 56; 1923 (33) 103; 1925 (34) 59; 1926 (34) 935; 1928 (35) 1204; 1931 (37) 123; 1934 
(38) 1260; 1939 (41) 279; 1941 (42) 118. 

§ 52. Courts in second circuit. 

(1) Terms. — The courts of the second judicial circuit of South Carolina 
shall be held as follows: 

(a) Aiken County. — The court of general sessions for the county of 
Aiken shall be held at Aiken on the fourth Monday in January, two weeks; 
the first Monday in May, two weeks; the first Monday in October, two 
weeks. The court of common pleas for said county of Aiken shall be held 
at Aiken on the second Monday in January for a term of two weeks; on 
the fourth Monday in March, three weeks; on the first Monday in June, two 
weeks; on the second Monday in November, three weeks. 

(b) Bamberg County. — The court of general sessions for Bamberg County 
shall be held at Bamberg on the third Monday of February, one week; on 
the second Monday in September, one week. The court of common pleas 
for said county shall be held at Bamberg on the third Monday in April, 
two weeks; on the second Monday in July, one week; and on the fourth 
Monday in October, two weeks. 

(c) Barnwell County. — The court of general sessions for Barnwell 
County shall be held at Barnwell on the fourth Monday in February, one 
week; the fourth Monday in May, one week; the third Monday in Sep- 
tember, one week. The court of common pleas for said county shall 
be held at Barnwell the second Monday in March, two weeks; the third 
Monday in June, two weeks; the first Monday in December, two weeks. 

1932 Code, § 52; Civ. P. '22, § 50; Civ. P. '12, § 19; Civ. P. '02, § 19; 1897 (22) 444; 



Page 37 Circuits and Terms of Courts § 54 

1910 (26) 542; 1911 (27) 87; 1912 (27) 770; 1914 (28) 607; 1915 (29) 198; 1916 (29) 691, 
699; 1917 (30) 135; 1919 (31) 43; 1920 (31) 855; 1924 (33) 930; 1926 (34) 991; 1933 (38) 
320; 1935 (39) 308; 1937 (40) 573; 1941 (42) 118. 

Cited but not construed in State v. Girgory, 127 S. C. 87, 120 S. E. 499. 

§ 53. Courts in third circuit. 

(1) Terms. — The courts of the third circuit shall be held as follows: 

(a) Clarendon County. — The court of general sessions at Manning, for 
the county of Clarendon, on the fourth Monday in January, one week, the 
third Monday in June, one week, and the second Monday in September one 
week. The court of common pleas at the same place on the first Monday 
in March, two weeks, the fourth Monday in June, one week, and the third 
Monday in October, two weeks. 

(b) Lee County. — The court of general sessions at Bishopville, for the 
county of Lee, the first Monday in February, one week, on the second Mon- 
day in June, one week, and on the first Monday in September, one week. 
The court of common pleas at the same place, on the fourth Monday in 
March, two weeks, the fourth Monday in September, one week, and the 
fourth Monday in November, two weeks. 

(c) Sumter County. — The court of general sessions at Sumter, for the 
county of Sumter, on the second Monday in February, two weeks, on the 
first Monday in July, one week, and on the first Monday in November, two 
weeks. The court of common pleas at the same place on the second Monday 
in January, two weeks, on the second Monday in April, three weeks, on 
the second Monday in July, one week, on the first Monday after fourth 
Monday in September, two weeks, and on the second Monday in Decem- 
ber, two weeks: provided, that no jury trial of civil cases shall be had at 
the summer term of common pleas court in Sumter county except by 
agreement of a majority of the bar of said county. 

(d) Williamsburg County. — The court of general sessions at Kingstree, 
for the county of Williamsburg on the second Monday after the second Mon- 
day in February, one week, on the first Monday in June, one week, and 
on the third Monday in September one week. The court of common pleas 
at the same place on the third Monday in March, one week, on the fourth 
Monday in May, one week, on Wednesday first succeeding the first Mon- 
day in June, and on the third Monday in November, one week; provided, 
that no jury trial of civil cases shall be had at the June term except by 
consent. The petit jurors for the first and third terms of the court of gen- 
eral session shall not be required to attend the first, second and fourth 
terms of the court of common pleas, but separate juries shall be drawn 
and summoned for said courts. 

(2) Draw separate juries for certain terms, Lee, Sumter and Williams- 
burg Counties. — Separate juries are drawn for the court of general sessions 
and the courts of common pleas for all terms for Sumter County and for 
the first and third terms for Lee and Williamsburg Counties. 

1932 Code, § 53; Civ. P. '22, § 51; Civ. P. '12, § 20; Civ. P. '02, § 18; 1884 (18) 886; 
1896 (22) 22; 1900 (23) 311; 1902 (23) 1194; 1910 (26) 541; 1914 (28) 531; 1916 (29) 693; 
1924 (33) 1187; 1928 (35) 1288; 1929 (36) 79; 1931 (37; 320, 376; 1934 (38) 1466; 1936 
(39) 1481; 1939 (41) 184; 1940 (41) 1771; 1941 (42) 113. 

§ 54. Courts in fourth circuit. 
(1) Terms.- — The regular terms of the circuit courts of the fourth judicial 



§ 54 Code of Civil Procedure Page 38 

circuit shall be as follows: 

(a) Courts of General Sessions: At Chesterfield for Chesterfield Coun- 
ty, on the first Monday in February, second Monday in June, second Mon- 
day in November; at Bennettsville for Marlboro County, on the second 
Monday in February, first Monday in June and fourth Monday in October; 
at Darlington for Darlington County, on the second Monday in January, 
third Monday in March, third Monday in June and first Monday in Nov- 
ember; at Dillon for Dillon County, on the second Monday in March, fourth 
Monday in June and third Monday in November. 

(b) Courts of Common Pleas: At Chesterfield for Chesterfield County, 
on the first Monday in January, the third Monday in February, third Mon- 
day in April, fourth Monday in May, first Monday in September and first 
Monday in October and fourth Monday in November; at Bennettsville 
for Marlboro County, on the third Monday in January, first Monday in 
March, fourth Monday in April, third Monday in May, second Monday in 
October and first Monday in December; at Darlington for Darlington 
County, on the fourth Monday in January, fourth Monday in February, 
fourth Monday in March, second Monday in April, second Monday in May, 
third Monday in September, second Monday in December; at Dillon for 
Dillon County, on the first Monday in April, first Monday in May and 
second Monday in September, and third Monday in October. 

(2) Time pleadings, etc., returnable. — All recognizances, pleadings, no- 
tices and papers, whether dated heretofore or hereafter, shall be return- 
able and applicable to the terms of the court as fixed by this section, and 
the clerk of the court for each county in the fourth judicial circuit shall 
give two weeks' notice of each and every term of the court in some news- 
paper published in the county, stating the day of the month on which 
the next court will open for the county. 

1932 Code, § 54; Civ. P. '22, § 52; Civ. P. '12, § 21; Civ. P. '02, § 21; 1883 (18) 305; 
1887 (19) 999; 1897 (22) 404; 1901 (23) 627; 1910 (26) 544; 1911 (27) 80; 1922 (32) 780; 
1924 (33) 932; 1925 (34) 233; 1932 (31) 1213; 1934 (38) 1400; 1935 (39) 440; 1937 (40) 
573; 1940 (41); 1646, 1754, 1844; 1941 (42) 151, 118. 

§ 55. Courts in fifth judicial circuit. 

(1) Terms. — The courts of the fifth judicial circuit shall be held as fol- 
lows: 

(a) Kershaw County. — The court of general sessions for Kershaw Coun- 
ty shall be held at Camden on the third Monday in February, the fourth 
Monday in June, and the fourth Monday in October; and the court of com- 
mon pleas for said county on the fourth Monday in February, the second 
Monday in June, and the first Monday in November, said terms of com- 
mon pleas court to continue for two weeks each. 

(b) Richland County. — The court of general sessions for Richland 
County shall be held at Columbia on the second Monday in January for 
two (2) weeks; on the second Monday in April for two (2) weeks; on the 
third Monday in May for two (2) weeks; on the Tuesday following the first 
Monday in September for three (3) weeks; and on the second Monday in 
December for two (2) weeks; and the court of common pleas for said 
county on the fourth Monday in January for two (2) weeks; on the second 
Monday in March for three (3) weeks, the first week of which shall be for 
the disposal of motions, equity matters and any other matters not requir- 
ing the attendance of a jury, and the other two weeks for the disposal of 



Page 39 Circuits and Terms of Courts § 55 

jury matters; on the first Monday in May for two (2) weeks; on the fourth 
Monday in September for three (3) weeks, and on the third Monday in 
November for three (3) weeks, two weeks of which shall be for the disposal 
of jury matters, and the other week, which includes Thanksgiving Day, 
shall be for the disposal of motions, equity matters and other matters not 
requiring the attendance of a jury. 

(2) Terms designated. — The courts held under the provisions hereof in 
the fifth circuit, during the first four months of the year, shall be known 
as the spring term of the court of general sessions and the spring term of 
the court of common pleas; during the next four months as the summer 
terms of said court, respectively; and during the last four months as the 
fall terms of said courts, respectively. And the two sessions of the court 
of common pleas herein appointed for Richland County during the spring 
term and the two sessions of said court for Richland County herein ap- 
pointed during the fall term, shall be known as the first and second ses- 
sions, respectively of such terms. 

(3) Time for pre-trial motions and non-jury matters — summoning of 
jurors. — The first day of each term of the court of common pleas provided 
for in this circuit, shall be set aside for pre-trial motions and all matters not 
requiring a jury, except those terms in Richland County of which the entire 
first or last week is set aside for such purpose, as herein provided for. 
Where the first day of the terms of the court of common pleas is set aside 
for pre-trial motions and matters not requiring a jury, as herein provided 
for, that the jury for the said court of common pleas shall not be sum- 
moned to appear on the first day of such term, but shall be summoned to 
appear on the second day of such term. 

(4) Memorial Day, Richland County. — The first day of the term of the 
court of common pleas for Richland County to commence on the first Mon- 
day in May, shall be set aside and designated as Memorial Day, at which 
time memorial exercises shall be held for the members of the Richland 
County bar who have died during the previous months. The day set aside 
as Memorial Day, where there are such exercises to be held, shall be taken 
up with such exercises, and there shall not be taken up any business of 
the court. 

(5) Exhibits introduced in evidence in trial of jury cases. 

(a) Stenographer Keep. — Subject to the directions of the presiding judge 
before whom the cause is tried, and of the resident judge of the circuit in 
all other instances, exhibits introduced in evidence in the trial of jury cases 
in the courts of common pleas and general sessions of the fifth judicial 
circuit shall be in the custody and keeping of the official court stenographer 
during the trial and until the final disposition of the case, whether on ap- 
peal or otherwise. Provided, that exhibits may be introduced in evidence 
subject to immediate withdrawal by counsel, provided such be stated in 
the record and so directed by the presiding judge, and in such event the 
official court stenographer shall be permitted access to such exhibits at 
any and all times necessary for the purpose of making his transcript re- 
quested by counsel on either side. 

(b) Stenographer Surrender after Final Disposition of Cause. — At the 
final disposition of a cause the official court stenographer is authorized to 
surrender any or all exhibits to counsel representing the parties owning 
the same, and take a receipt therefor, and in the event said counsel shall 



§ 55 Code of Civil Procedure Page 40 

fail or refuse to receipt therefor, the official court stenographer is author- 
ized to file such exhibits with the clerk of the court and the said clerk of 
court is directed to receipt for the same. 

(c) Appeals. — For the convenience of counsel on either side in perfecting 
an appeal, the official court stenographer is authorized with the consent 
of counsel who introduced the exhibit, to turn over to counsel perfecting 
the appeal any exhibit or exhibits in the case, upon receipt given therefor; 
but the official court stenographer shall at any and all times have access 
to same when necessary in preparing transcript which may be ordered by 
counsel on either side. 

(d) Statute Applicable only in Fifth Judicial Circuit. — The provisions 
of this subsection shall apply only in the fifth judicial circuit. 

(e) Powers of Judges. — Nothing in this subsection shall be construed to 
limit the right of the presiding judge in the cause, or the resident judge of 
the circuit at all other times, to order any other disposition of any exhibit 
introduced in evidence in any cause. 

(6) Stenographer for courts of general sessions — appointment — compen- 
sation. — The resident circuit judge of the fifth judicial circuit is hereby 
authorized to appoint some competent stenographer who shall be the 
regular official stenographer for the courts of general sessions for the fifth 
judicial circuit, who shall receive as compensation for his services the sum 
of six hundred ($600.00) dollars per annum, three hundred of which shall 
be payable monthly upon the warrant of the comptroller general in the 
same manner as now provided for the payment of the salaries of other 
state officers, and three hundred of which shall be paid by the counties 
of Richland and Kershaw, the former two hundred and the latter one 
hundred dollars: provided, that the said stenographer shall also be en- 
titled to receive the fees now fixed by law for all transcripts furnished 
by him: provided, further, that should the judge of the said circuit, for 
any reason satisfactory to himself, find it to the best interests of the circuit, 
to designate the regular circuit stenographer of said circuit, appointed 
pursuant to the provisions of the Code of Civil Procedure, to act also as 
stenographer for the general sessions court, that during the time the said 
circuit stenographer performs such duties in the court of general sessions 
he shall be entitled to the salary provided herein in addition to his salary 
as circuit stenographer, and the fees incident to such position, and that 
the salary appropriated by the State shall be paid by the comptroller 
general upon the order of the circuit judge designating the said circuit 
stenographer for the time he is so designated. 

1932 Code, § 55, 986; Civ. P. '22, § 53; Civ. P. '22, § 77; Civ. P. '12, § 22; Civ. P. '02 
§ 22; 1877 (16) 299; 1896 (22) 24; 1899 (23) 33; 1910 (26), 541; 1912 (27) 768; 1913 (28) 
13; 1915 (29) 175; 1919 (31) 18; 1922 (32) 799; 1924 (33) 933; 1926 (34) 991, 999; 1938 
(40) 1918; 1939 (41) 424; 1940 (41) 1699; 1941 (42) 118. 

§ 56. Courts in sixth circuit. 

(1) Terms. — The courts of the sixth judicial circuit shall be held as 
follows: 

(a) Chester County. — The court of general sessions at Chester, for the 
county of Chester, on the first Monday in January, on the first Monday in 
March, the first Monday in July and the first Monday in October; and the 
court of common pleas at the same place, commencing on the second Mon- 
day in January, the first Monday after the fourth Monday in March, the 



Page 41 Circuits and Terms of Courts § 56 

third Monday in May and on the second Monday after the fourth Monday 
in October, and each term of the court of common pleas shall continue for 
a term of two weeks if so much be necessary. Provided, that at the term of 
the court of general sessions to be held on the first Monday in January 
only jail cases shall be called for trial, but this shall not be construed to 
prevent the trial at such term of persons out on bond who consent thereto. 

(b) Fairfield County. — The court of general sessions at Winnsboro, for 
the county of Fairfield, on the third Monday in February, the second Mon- 
day in June and the first Monday in September; and the court of common 
pleas at the same place on the second Monday in March, the third Monday 
in July, and the second Monday in October. 

(c) Lancaster County. — The court of general sessions at Lancaster, for 
the county of Lancaster, on the fourth Monday in February, the third 
Monday in June, and the third Monday in September; and the court of 
common pleas at the same place on the fourth Monday in March, and the 
fourth Monday in October. 

(d) York County. — The court of general sessions at York, for the county 
of York, on the fourth Monday in January and on the third Monday after 
the fourth Monday in March, on the second Monday in July, the second 
Monday in September and on the fourth Monday after the fourth Monday 
in October; and the court of common pleas at the same place on the Wednes- 
day first following the Mondays fixed for the holding of the court of general 
sessions at the same place; on the first Monday in May and continuing for a 
term of two weeks; except there shall be no term of the court of common 
pleas to follow the court of general sessions which is provided for on the 
fourth Monday in January: provided, that the court of common pleas, 
where following the court of general sessions at the same term of the 
circuit for said county, may be opened immediately after the adjournment 
of such court of general sessions, if the work of the latter be concluded in 
less than two days. Provided, further, that nothing herein contained shall 
be held to limit the court of general sessions to two days, if the work of the 
court is not concluded in such time: provided further, that where the 
court of common pleas follows the court of general sessions at the same 
term of the court for said county, calendar one of the court of common 
pleas shall not be called peremptorily until the Mondays following the 
Mondays fixed for holding the court of general sessions at said place, but 
this latter provision shall not apply to the summer term: provided, further, 
that jury trials of civil cases shall not be had at the January term: and 
provided, further, that only one venire of jurors shall be drawn for the 
February term, the jurors for said term to be summoned to attend on the 
Monday first following the convening of the court, for services during that 
week of the said term. 

(2) Duration of terms of common pleas — equity cases. — There shall be 
allowed for the trial of jury cases, equity cases, motions and special mat- 
ters, if the business of the court demands it, at least two weeks each at the 
spring and winter terms of court of common pleas for Fairfield, Chester 
and York Counties, and one week at the spring term and two weeks at the 
winter term of court of common pleas for the county of Lancaster. 

(3) Auctioneers and stenographers, York County. — The clerk of the court 
for York County is authorized to appoint one or more official court auc- 



§ 56 Code of Civil Procedure Page 42 

tioneers for York County to cry legal public sales. The said auctioneer for 
York County shall receive as a fee for his service $3.00 for each such sale, 
whether the sale is made as a whole or in parcels, which auctioneers fee 
shall be taxed as a part of the court costs and expenses. The clerk of court 
or special referee in each case in York County in which he presides shall 
appoint an official stenographer who shall be paid a minimum of $5.00 for 
each reference taken and transcribing testimony which stenographer's fees 
shall be taxed and paid as a part of the court costs in such case. 

(4) Stenographer and auctioneer, Lancaster County. — The clerk of court 
of Lancaster County is authorized to engage the services of a stenographer 
in judicial hearings before him in matters referred to him by an order of 
the circuit court, and to tax in the costs of the proceedings three ($3.00) 
dollars for each hearing to cover the compensation of such stenographer. 

The said clerk is also authorized and empowered to employ an auctioneer 
in making judicial sales who shall receive the following fees for his 
services: two ($2.00) dollars for the sale of the first tract or parcel of land 
and fifty (50c) cents for the sale of each additional tract under the same 
order of court. In cases where more than one tract is sold, together, the 
fee shall be two ($2.00) dollars for each such sale. The fees shall be taxed 
and paid as part of the costs in the proceedings in which the sales are made. 

1932 Code, § 56; Civ. P. '22, § 54; Civ. P. '12, § 23; Civ. P. '02, § 23; 1885 (19) 223; 
1899 (22) 34; 1900 (23) 312; 1907 (25) 617; 1911 (27) 64; 1916 (29) 698; 1922 (32) 838; 
1925 (34) 29; 1928 (35) 1216; 1929 (36) 41; 1930 (36) 1098, 1264; 1933 (38) 136; 1934 (38) 
1199, 1254; 1935 (39) 237; 1937 (40) 452; 1938 (40) 1698; 1941 (42) 118. 

§ 57. Courts in seventh circuit. 

(1) Terms. — The courts of the seventh judicial circuit shall be held as 
follows: 

(a) Cherokee County. — The court of common pleas for Cherokee 
County shall convene at Gaffney on the first Monday of March for two 
weeks, on the first Monday of July for one week, and on the first Monday 
of November for two weeks. The court of general sessions for Cherokee 
County shall convene at Gaffnej' on the third Monday of March for one 
week, on the second Monday of July for one week, and on the third Monday 
of November for two weeks. 

(b) Spartanburg County. — The court of common pleas for Spartanburg 
County shall convene on the third Monday of January for three weeks, on 
the fourth Monday of March for four weeks, on the fourth Monday of May 
for three weeks, on the third Monday of July for one week, and on the 
fourth Monday of September for four weeks; the court of general sessions 
for Spartanburg County shall convene at Spartanburg on the first Monday 
of January for two weeks, on the fourth Monday after the fourth Monday 
of March for one week, on the third Monday after the fourth Monday of 
May for one week, on the fourth Monday of July for one week, and on the 
fourth Monday after the fourth Monday of September for one week. 

(c) Union County. — The court of common pleas for Union County shall 
convene at Union on the second Monday of February for two weeks; on the 
first Monday of May for two weeks; on the first Monday of September for 
two weeks; and on the first Monday of December for one week. The court 
of general sessions shall convene at Union on the fourth Monday of Febru- 
ary for one week; on the third Mondaj' of May for one week; on the third 
Monday of September for one week; and on the second Monday of De- 



Page 43 Circuits and Terms of Courts § 58 

cember for one week. 

(2) When continue general sessions term. — If the business of the court of 
general sessions is not concluded at the end of any week, except the second 
week in January at Spartanburg, the petit jury drawn for that term of the 
sessions court shall be continued for the next week, or until the business of 
the sessions court is completed. 

(3) Stenographer for court of general sessions — salary — by whom paid. — 
The resident circuit judge of the seventh judicial circuit is hereby author- 
ized to appoint some competent stenographer for the courts of general 
sessions for the seventh judicial circuit, who shall receive as compensation 
for his services the sum of eight hundred dollars per annum, two hundred 
and sixty-six and 66-100 dollars of which shall be paid monthly upon the 
warrant of the comptroller general in the same manner as now provided 
for the payment of the salaries of the other state officers, and two hundred 
and sixty-six and 66-100 dollars of which shall be paid monthly by the 
county of Spartanburg, one hundred and thirty-three and 33-100 dollars of 
which shall be paid by the county of Union, and one hundred and thirty- 
three and 33-100 dollars of which shall be paid by the county of Cherokee: 
provided, that the stenographer shall also be entitled to receive the fees 
now fixed by law for all transcripts furnished by him: provided, further, 
that when the stenographer of the court of common pleas does not furnish 
transcripts as promptly as required by law and otherwise perform his 
duties, then the stenographer of the court of general sessions shall at once 
perform the duties of the stenographer of the court of common pleas until 
the said stenographer shall have furnished all transcripts required; and 
the stenographer of the court of general sessions shall receive the com- 
pensation and fees of the stenographer of the court of common pleas while 
performing the duties as aforesaid. 

1932 Code, §§ 57, 987; Civ. P. '22, §§ 55, 78; Civ. P. '12, § 24; Civ. P. '02, § 24; 1914 
(28) 602; 1916 (29) 695; 1889 (20) 359; 1896 (22) 25; 1898 (22) 685; 1899 (23) 35; 1906 
(25) 48, 49; 1908 (25) 1011; 1913 (38) 30; 1916 (29) 695; 1917 (30) 137; 1919 (31) 186; 
1922 (32) 815; 1931 (37) 256; 1933 (38) 189; 1934 (38) 1240; 1935 (39) 405; 1937 (40) 
106; 1941 (42) 118. 

Cited but not construed in State v. Henderson, 136 S. C. 363, 134 S. E. 364. 

§ 58. Courts of eighth circuit. 

(1) Terms. — The courts of the eighth circuit shall be held as follows: 
(a) Abbeville County. — -The court of general sessions at Abbeville for the 
county of Abbeville, on the fourth Monday in February; the first Monday 
in June; and the first Monday in September; and the court of common 
pleas at the same place, on the fourth Monday in March, to last for two 
weeks, if so much be necessary, and on the second Monday in October, for 
one week, and on the second Monday in December for one week. 

(b) Greenwood County. — The court of general sessions at Greenwood, 
for the county of Greenwood the first Monday in January, the second Mon- 
day in April, the fourth Monday in June and the second Monday in Sep- 
tember; and the court of common pleas at the same place on the first Mon- 
day in March, the third Monday in April, the first Monday after the fourth 
Monday in September and the third Monday in November. 

(c) Laurens County. — The court of general sessions at Laurens, for the 
county of Laurens, on the third Monday in February, the second Monday 
in June, the fourth Monday in September and the second Monday in No- 



§ 58 Code of Civil Procedure Page 44 

vember; and the court of common pleas, at the same place, on the second 
Monday in March and the second Monday in May, to continue for three 
weeks, if so much be necessary, and on the fourth Monday in October for 
two weeks if necessary. 

(d) Newberry County. — The court of general sessions at Newberry, for 
the county of Newberry, on the third Monday in March, on the third Mon- 
day of June, and on the third Monday in October, for one week; and the 
court of common pleas, at the same place, on the fourth Monday in Janu- 
ary, on the fourth Monday in April, on the third Monday in September, on 
the fourth Monday in November, to continue for two weeks if necessary. 

1932 Code, § 58; Civ. P. '22, § 56; Civ. P. '12, § 25; Civ. P. '02, §§ 24, 25; 1889 (20) 
360; 1891 (20) 1113; 1896 (22) 26; 1899 (23) 37; 1900 (23) 314; 1901 (23) 629; 1910 
(26) 538; 1916 (29) 696; 1919 (31) 113; 1920 (31) 807; 1922 (32) 1039; 1925 (34) 277; 
1928 (35) 1152; 1932 (37) 1390; 1934 (38) 1446; 1939 (41) 485; 1941 (42) 118, 129. 

See generally. State v. Washington, 82 S. C. 341, 64 S. E. 386. 

§ 59. Courts of ninth circuit. 

(1) Terms. — The courts of the ninth circuit shall be held as follows: 

(a) Charleston County. — The court of general sessions for the county of 
Charleston shall be held at Charleston on the first Monday in March, two 
weeks; on the first Monday in June, two weeks; on the second Monday in 
September, two weeks; on the first Monday in December, two weeks. The 
court of common pleas for said county shall be at the same place on the 
first Monday in February, four weeks; on the fourth Monday in March, 
five weeks; on the fourth Monday in October, five weeks. 

(b) Berkeley County. — The court of general sessions for the county of 
Berkeley shall be held at Moncks Corner on the second Monday in May, 
one week; on the third Monday in October, one week. The court of common 
pleas for the said county shall be held at the same place on the third Mon- 
day in March, one week; on the fourth Monday in September, two weeks, 
if so much be necessary. 

1932 Code, § 59; Civ. P. '22, § 57; Civ. P. '12, § 26; Civ. P. '02, § 18; 1884 (18) 686; 
1887 (19) 987; 1894 (21) 717; 1898 (22) 683; 1899 (23) 258; 1900 (23) 309; 1909 (26) 
163; 1913 (28) 19, 31; 1915 (29) 179; 1917 (30) 138; 1920 (31) 725; 1921 (32) 203; 1923 
(33) 128; 1925 (34) 280; 1926 (34) 1047, 1048; 1930 (36) 1135; 1931 (37) 245; 1941 
(42) 118. 

§ 60. Courts in tenth circuit. 

(1) Terms. — The courts of the tenth circuit shall be held as follows: 

(a) Anderson County. — The court of general sessions at Anderson, for 
the county of Anderson, beginning on the first Monday in February, the 
second Monday in May, the first Monday in September and the third Mon- 
day in November; and the court of common pleas, at same place, beginning 
on the second Monday in March, the second Monday in April, and the third 
Monday in June, the first Monday in October and the first Monday in 
December. 

(b) Oconee County. — The court of general sessions, at Walhalla, for the 

county of Oconee, beginning the first Monday in March, the first Monday in 

July and the first Monday in November; and the court of common pleas, 

at the same place, beginning on the fourth Monday in March, the second 

Monday in July and the third Monday in October. 

1932 Code, § 60; Civ. P. '22, § 58; Civ. P. '12, § 27; Civ. P. '02, § 25; 1908 (25) 1013; 
1912 (27) 549; 1913 (28) 138; 1914 (28) 608; 1941 (42) 118. 



Page 45 Circuits and Terms of Courts § 62 

§ 61. Courts in eleventh circuit. 

(1) Terms. — The courts of the eleventh circuit shall be held as follows: 

(a) Lexington County. — The court of general sessions for the county of 
Lexington, at Lexington court house, on the third Monday in January, the 
fourth Monday in May, and the second Monday in September; and the 
court of common pleas, at the same place, on the third Monday in April, 
the fourth Monday in June, and the fourth Monday in November. 

(b) McCormick County. — The court of general sessions for the county 
of McCormick, at McCormick court house, on the first Monday in February, 
the second Monday in June, the first Monday in October; and the court of 
common pleas, at the same place, on Wednesday after the first Monday in 
February, Wednesday after the second Monday in June and Wednesday 
after the first Monday in October; and the same panel of petit jurors shall 
be eligible to serve for both the courts of general sessions and common 
pleas, at each term of court. 

(c) Saluda County. — The court of general sessions for the county of 
Saluda shall convene at Saluda court house on the fourth Monday in Febru- 
ary, the third Monday in May, and the fourth Monday in September. The 
terms of the court of common pleas for Saluda County shall convene at 
Saluda court house as follows: the spring term of court of common pleas 
shall convene on the fourth Monday in March; the summer term of court of 
common pleas shall convene immediately upon the conclusion of the work 
of the May court of general sessions, and the same panel of petit jurors 
shall be eligible to serve both the courts of general sessions and common 
pleas at May term of said courts. The fall term of court of common pleas 
shall convene on the second Monday in November. 

(d) Edgefield County. — The court of general sessions for the county of 
Edgefield, at Edgefield court house, on the first Monday in March, the second 
Monday in July and the third Monday in October; and the court of common 
pleas, at the same place, on the second Monday in March. Wednesday after 
the second Monday in July, the third Monday in July, and the fourth Mon- 
day in October; the same panel of petit jurors shall be eligible to serve for 
both the courts of general sessions and common pleas at the July term of 
court. Provided, that a new panel of petit jurors shall be drawn as now 
provided by law for the term commencing the third Monday in July. 

(2) Calendars call. — The presiding judge shall call calendars two and 

three peremptorily on Wednesday after the opening of the sessions court, 

or as soon before or thereafter as there may be time for the same and the 

court deems it proper, in the counties of Lexington and Saluda, but in no 

event shall the calling of said calendars or the hearing of cases thereon be 

allowed to interfere with business of the sessions court. 

1932 Code, § 61; Civ. P. '22, § 59; Civ. P. '12, § 28; Civ. P. '02, § 22; 1877 (16) 299; 
1896 (22) 24; 1897 (22) 433; 1899 (23) 33, 685; 1909 (26) 169; 1916 (29) 717; 1917 (30) 
53; 1930 (36) 1111, 1170; 1936 (39) 1332; 1941 (42) 118, 164. 

Cited but not construed in Burwell & Dunn Co. v. Chapman, 59 S. C. 581, 38 
S. E. 222. 

§ 62. Courts in twelfth circuit. 

(1) Terms. — The courts of the 12th judicial circuit shall be held as fol- 
lows: 

(a) Horry County. — The court of general sessions at Conway, for the 



§ 62 Code of Civil Procedure Page 46 

county of Horry, on the first Monday in March for two weeks, on the first 
Monday in June for one week and on the first Monday in October for two 
weeks; and the court of common pleas at the same place on the Wednesday 
succeeding the Mondays herein fixed for the holding of the court of general 
sessions at said place. 

The court of common pleas at Conway, for the county of Horry, on the 
first Monday in February, for two weeks, on the first Monday in May, for 
one week; on the first Monday in September, for two weeks and on the sec- 
ond Monday in December, for one week. 

(b) Marion County. — The court of general sessions at Marion, for the 
county of Marion, on the third Monday in March, for one week; on the 
second Monday in June, for one week; and on the third Monday in October, 
for one week. 

The court of common pleas at Marion, for the county of Marion, on the 
third Monday in April, for one week; on the fourth Monday in May, for 
one week and on the third Monday in November for two weeks. 

(c) Florence County. — The court of general sessions at Florence, for the 
county of Florence, on the first Monday in January, for one week; on the 
fourth Monday in March, for two weeks and on the third Monday in June, 
for one week and on the fourth Monday in October, for two weeks. 

The court of common pleas at Florence, for the county of Florence, on the 
third Monday in February, for two weeks; on the second Monday in May, 
for one week; on the third Monday in September for two weeks and on the 
third Monday in January, for one week. 

(d) Georgetown County. — The court of general sessions at Georgetown 
for the county of Georgetown, on the second Monday in April, for one 
week; on the fourth Monday in June, for one week and on the second Mon- 
day in November for one week. 

The court of common pleas at Georgetown, for the county of Georgetown, 
on the fourth Monday in January, for one week; on the third Monday in 
Mav, for one week, and on the first Monday in December, for one week. 

1932 Code, § 62; Civ. P. '22, § 60; Civ. P. '12, § 29; Civ. P. '02, §§ 20, 21; 1909 (26) 
23; 1915 (29) 71; 1919 (31) 76; 1920 (31) 718; 1923 (33) HO; 1924 (33) 934; 1928 (35) 
1250; 1932 (37) 1375; 1934 (38) 1242, 1232; 1936 (39) 1336; 1939 (41) 238; 1941 
(42) 118. 

Cited but not construed in McLaurin v. Kelly, 40 S. C. 486, 19 S. E. 143. 

§ G3. Courts in thirteenth circuit. 

(1) Terms. — The courts of the thirteenth circuit shall be held as follows: 

(a) Greenville County. — Court of common pleas at Greenville for the 
county of Greenville, the fourth Monday in January, three weeks; the 
fourth Monday in March, two weeks for jury trials and one week for equity 
cases; third Monday in May, two weeks; third Monday in June, two weeks; 
second Monday in September, two weeks; second Monday in October, two 
weeks and the second Monday in November, two weeks for jury trials and 
one week for equity cases. Court of general sessions at Greenville for the 
county of Greenville the second Monday in January, two weeks; second 
Monday in March, two weeks; first Monday in May, two weeks; first Mon- 
day in September, one week; fourth Monday in October, two weeks; and 
the first Monday in December, one week. 

(b) Pickens County. — The court of general sessions at Pickens, for the 



Page 47 Circuits and Terms of Courts § 64 

county of Pickens, the third Monday in February, one week; first Monday 
in June, one week; fourth Monday in September, one week. The court of 
common pleas at Pickens for the county of Pickens, the fourth Monday 
in February, two weeks; the second Monday in June, one week; the first 
Monday in October, one week. 

1932 Code, § 63; Civ. P. '22, § 61; Civ. P. '12, §§ 19, 26; Civ. P. '02, § 19; 1883 (18) 
462; 1884 (18) 886; 1896 (22) 20; 1900 (23) 310; 1901 (23) 624; 1910 (26) 542; 1911, 1922 
(32) 841; 1923 (33) 101; 1927 (35) 78; 1929 (36) 38; 1932 (37) 1335; 1937 (40) 347. 

§ 64. Courts in fourteenth circuit. 

(1) Terms. — The courts in the fourteenth judicial circuit shall be held as 
follows: 

(a) Allendale County. — The courts of general sessions for the county of 
Allendale, at Allendale, on the 3rd Monday in April, for one week; on the 
first Monday in July, for one week; and on the 3rd Monday in October for 
one week. The court of common pleas for said county of Allendale, at Allen- 
dale, on the 4th Monday in April for two weeks, and on the 2nd Mon- 
day in November for one week. 

(b) Beaufort County. — The courts of general sessions for the county of 
Beaufort, at Beaufort, on the first Monday in March for not longer than one 
week, on the fourth Monday in June for not longer than one week, and on 
the fourth Monday in November for not longer than one week. The courts 
of common pleas for the said county of Beaufort, at Beaufort, shall convene 
on the third Monday of March for two weeks, and the fourth Monday in 
June as soon as the court of general sessions shall have concluded, and 
shall continue during the remainder of the week, and on the second Monday 
in December for one week. 

(c) Colleton County. — The courts of general session for the county of 
Colleton, at Walterboro, on the first Monday in April, for one week; on the 
second Monday in June, for one week and on the third Monday in Septem- 
ber, for one week. The court of common pleas for said county of Colleton, 
at Walterboro, on the second Monday in April, for one week, on the fourth 
Monday in May, for one week, on the fourth Monday in October, for two 
(2) weeks. 

(d) Hampton County. — The courts of general sessions for the county of 
Hampton, at Hampton, on the third Monday in February for not longer 
than one week; and on the first Monday in June for not longer than one 
week; and on the second Monday in October for not longer than one week; 
the courts of common pleas for said county of Hampton, at Hampton, on 
the first Monday in February for not longer than two weeks, on the 
Wednesday following the first Monday in June for not longer than the 
remainder of said week, and on the fourth Monday in September for not 
more than two weeks. 

(e) Jasper County. — The courts of general sessions for the county of 
Jasper at Ridgeland, South Carolina, on the fourth Monday in February 
for one week; the third Monday in May for two weeks; the third Monday 
in June for one week, and the third Monday in November for one week. 
The courts of common pleas for said county shall convene as soon as the 
courts of general sessions shall have concluded, except that during the 
week commencing the third Monday in November, there shall be no regu- 
lar term of the court of common pleas. There shall also be terms of the 



§ 64 Code of Civil Procedure Page 48 

court of common pleas for said county on the second Monday in May for 
one week, and the first Monday in December for one week. 

1932 Code, § 64; Civ. P. '22, § 62; Civ. P. '12, §§ 19, 26; Civ. P. '02, § 19; 1883 (18) 
462; 1884 (18) 886; 1896 (22) 20; 1900 (23) 310; 1901 (23) 624; 1910 (26) 542; 1911 
(27) 87; 1912 (27) 580, 770; 1913 (28) 19, 31; 1914 (28) 607; 1915 (29) 79, 198; 1916 (29) 
700; 1917 (30) 37, 49; 1920 (31) 919; 1922 (32) 929; 1923 (33) 182; 1925 (34) 18; 1926 
(34) 929; 1928 (35) 1179, 1264; 1929 (36) 26; 1931 (37) 257; 1934 (38) 1539; 1935 (39) 
87; 1941 (42) 118. 

§ 64-1. Jurisdiction of circuit judges presiding at term beginning last 
Monday in April. — Any judge of the circuit courts of this State, who may . 
be presiding at a court in any county in the State at the term beginning 
the last Monday in April of any year, shall have jurisdiction of all matters 
throughout such term, notwithstanding said term may extend into the 
month of May. 
1941 (42) 189. 

§ 65. Open general sessions court during term of common pleas court. — 

Whenever provision is made for holding the court of common pleas the 
presiding judge, during the time allowed for the holding of the court of 
common pleas, may open the court of general sessions and transact all or 
such business of the court of general sessions except trials by jury as said 
judge may deem expedient. 
1932 Code, § 65; 1929 (36) 209; 1941 (42) 118. 

§ 66. Open common pleas court during term of general sessions court. — 

The court of common pleas shall be open at all terms of the court of gen- 
eral sessions for the transaction of all business of regular terms of the court 
of common pleas except trial by jury. Provided, cases in the court of com- 
mon pleas may be tried during the term of any court of general sessions on 
consent of the parties or their attorneys to any of such cases, and when 
same does not conflict with the business of the court of general sessions. 
1932 Code, § 66; Civ. P. '22, § 63; Civ. P. '12, § 30; Civ. P. '02, § 26; 1878 (16) 703; 

1888 (18) 586; 1904 (24) 422; 1914 (28) 570; 1916 (29) 700; 1941 (42) 118. 

This section applies wherever provi- court of general sessions. Burwell & 

sion is made by statute for the opening Dunn Co. v. Chapman, 59 S. C. 581, 38 

of the general sessions only. Burwell & S. E. 22, 224; cited in Ward v. Western 

Dunn Co. v. Chapman, 59 S. C. 581, 38 Union Tel. Co., 62 S. C. 274, 40 S. E. 670. 

S. E. 222, 224. The common pleas opened under the 

Judge is required to open court of authority of this section is not a regular 

common pleas. — A judge is not only au- term. McLaurin v. Kelly, 40 S. C. 486, 

thorized but required to open the court 19 S. E. 143, 144. 
of common pleas at the conclusion of the 

§ 67. Adjourn court of common pleas. — Should the business before the 
court of genera] sessions at any term not be completed on the arrival of the 
day fixed by law for the holding of the court of common pleas for said 
county, the judge presiding may, in his discretion, adjourn said court of 
common pleas until the business of the court of general sessions shall have 
been concluded. But the provisions of this section shall not apply to the 
courts held in the county of Newberry. 
1932 Code, § 67; Civ. P. '22, § 64; Civ. P. '12, § 31; Civ. P. '02; § 27; 1870 (14) § 27; 

1889 (20) 359. 

See § 71 also for adjournment of cir- mon pleas must first be opened. — It is 

cuit courts. necessary to the adjournment herein 

Before adjournment the court of com- provided for, that the court of common 



Page 49 Circuits and Terms of Courts § 69 

pleas should be first opened on the day the court of common pleas may be open 

fixed for its holding. McKellar v. Park- at the same time. State v. Hunter, 79 S. 

er, 29 S. C. 237, 7 S. E. 295, 296. C. 91, 60 S. E. 226, 227; citing with ap- 

But such opening is by operation of proval McKellar v. Parker, 29 S. C. 237, 

law and not by formality.— Where the 7 S. E. 295. 

officers and machinery are present in Case begun in general sessions may be 

the court house on the day fixed for the finished in common pleas session. — A 

meeting of the court of common pleas, criminal case begun during the week as- 

that court is then opened by operation of signed for holding the court of general 

law without any formality. Hardin v. sessions might be continued and ended 

Trimmier, 30 S. C. 391, 9 S. E. 342; Mill- in the following week assigned for the 

er v. George, 30 S. C. 526, 9 S. E. 659; trial of cases in the court of common 

State v. Hasty, 76 S. C. 105, 56 S. E. 669; pleas. State v. Hasty, 76 S. C. 105, 56 S. 

cited in State v. Hunter, 79 S. C. 91, 60 e. 699, cited with approval in State v. 

S J?' 226 ,' , Hunter, 79 S. C. 91, 60 S. E. 226, 227. 

Thus the court of common pleas may A jud h no to l£ep the 

fn„^n and , ad]0Urned J£ lthout t ad ; court open beyond time for his holding 

journing general sessions. — The court of . . r .{. „, , 

common pleas can be opened and ad- court . in anot t h *5 c ° unty — ™ e C ° nclu " 

journed without adjourning the court of slon ls ^resistible that a judge has no 

general sessions, when the business be- P ower to take a recess and kee P the 

fore the latter court has been completed. court °P en > or to adjourn it beyond the 

McKellar v. Parker, 29 S. C. 237, 7 S. E. time fixed by statute for his holding the 

295. court of another county. Haughton v. 

The foregoing paragraph clearly shows Order of U. C. T. of America, 108 S. C. 

that the court of general sessions and 73, 93 S. E. 393, 394. 

§ 68. Call off terms of common pleas court fixed by statute. — Regular 
terms of the court of common pleas fixed by statute shall not be called off 
by the request of the members of the bar in the county where the court is 
to be held unless at least three-fourths of the resident members of such bar 
having cases for trial at that time request the same, in writing, of the judge 
who is to preside at such court. 
1933 (38) 264. 

§ 69. Special sessions of circuit courts. 

(1) Notice. — Whenever the public interest shall require the holding of a 
special session of the court of general sessions in any county of the State 
and such fact satisfactorily appears by petition of the solicitor of the judi- 
cial circuit in which such county is situate, and whenever it satisfactorily 
appears by petition of a majority of the members of the bar of any county 
that the public interest requires a special session of the court of common 
pleas for said county, said petitions to be first approved by the resident 
circuit judge or the circuit judge last presiding in such county and to be 
duly filed with the clerk of the Supreme Court, a special session of the 
court of general sessions or common pleas may be ordered for any such 
county by the Chief Justice of the Supreme Court; that the special session 
of court so ordered shall be held at such time and for such term, and such 
notice of the holding thereof shall be given, as may be provided in the 
order therefor, and which order shall be transmitted to and filed by the 
clerk of court of said county. 

(2) Presiding judge call special session of circuit court — notice — 
judge. — Whenever it shall satisfactorily appear to any circuit judge that 
the public interest requires the holding of a special session of the court of 
general sessions or common pleas in any county, in which he is at the 
time presiding over the court then in session, such circuit judge may order 
a special session of the court of general sessions or common pleas to be 
held for said county at such time and such term, and such notice of the 



§ 69 Code of Civil Procedure Page 50 

holding thereof shall be given, as he may by order provide, which ordei 
shall be entered upon the records of the clerk of said court. And when 
such special session is so ordered only the circuit judge ordering the same 
shall hold said court, unless he be incapacitated to do so because of his ill- 
ness or the illness of some member of his immediate family, or for any 
other reason considered sufficient in the opinion of the Chief Justice of 
the Supreme Court, and in that event the Chief Justice of the Supreme 
Court shall order some other disengaged circuit judge or special judge to 
hold said court. 

(3) Matters to be considered at special session of general sessions. — At 
any special session of the court of general sessions provided for and held 
under the provisions of this section all cases duly docketed shall be subject 
to trial, and all processes, writs, and recognizances of every kind, whether 
respecting juries, witnesses, bail or otherwise, which relate to the cases to 
be tried at the said special session, shall be considered as belonging to such 
session in the same manner as if they had been issued or taken in refer- 
ence thereto; and all cases pending for trial at any special session of said 
court, which are not tried or otherwise disposed of shall at the close thereof 
be considered as of course removed to the next stated term of court. 

(4) Trial of causes at special session of common pleas. — That any spec- 
cial session of the court of common pleas, provided for and held under the 
provisions of this section, no cause shall be tried unless the same shall 
have been previously docketed upon some one of the calendars of the last 
preceding regular term of said court: provided, that any cause may be 
docketed and tried by mutual consent of attorneys of record of said cause. 

(5) Resident judges may call special sessions. — The resident judge of each 
judicial circuit in this State shall have the same right and powers at 
chambers to order special terms of the circuit courts (general sessions and 
common pleas) as is by this section given to presiding judges; and such 
courts, when ordered, shall be held by the resident judge unless another 
judge is assigned to hold the same by the Chief Justice as hereinbefore 
provided for presiding judges, and such courts, when ordered, shall be 
governed by the same procedure as, and subject to all provisions of this 
section. 

1932 Code, § 69; Civ. P. '22, § 66; Civ. P. '12, § 33; Civ. P. '02, § 28; 1873 (14), § 28; 
1878 (16) 395, § 3; 1884 (18) 770; 1931 (37) 257; 1934 (38) 1204. 

Cross reference. — ■ As to provisions tion of the circuit judge when presiding 

where a judge is unable to hold court, at an extra term of the court to the un- 

see § 44 and note thereto. As to the pow- finished business of the court. Simms v. 

ers of judges holding court in other cir- Phillips, 46 S. C. 149, 24 S. E. 97, 99. 

cuits, see § 38 and note thereto. This section must be regarded as a 

Editor's note. — Section 44 provided limitation upon the general powers of 

who is to act when the chief justice is circuit judges when only an extra term 

incapacitated or out of the state. This of court is being held. Simms v. Phillips, 

constitutes an example of the connection 46 S. C. 149, 24 S. E. 97, 99. 

between § 44 and this section. Section Power of chief justice to order a spe- 

44 should be referred to in all instances, cial term is not absolute. — The power 

Section is constitutional. — The power to order a special term of court con- 
conferred by this section and § 44 is ferred on the chief justice of the Supreme 
easily sustainable under the provisions Court, or the presiding associate justice 
of the Constitution, Article V, § 6. State thereof, by this section and § 44 is not 
v. Gossett, 117 S. C. 76, 108 S. E. 290, 16 an absolute power but is controlled by 
A. L. R. 1299. considerations safeguarding the rights 

Legislative intent is to limit jurisdic- and interests of those whose rights and 

tion of circuit judges. — The intention of interests will be determined by the spe- 

the legislature was to limit the jurisdic- cial tribunal. State v. Gossett, 117 S. C. 



Page 51 



Circuits and Terms of Courts 



§ 73 



76, 108 290, 16 A. L. R. 1299. 

The appointment of a special judge is 
not essentially an executive function. — 
See this catchline under § 44, where is 
treated the case of State v. Davis, 88 S. 
C. 204, 70 S. E. 417, 419. 

Appointment of special judge without 
the suggestion of supreme court void. — 
See this catchline under § 44, where is 
treated the case of State v. Davis, 88 S. 
C. 204, 70 S. E. 417, 419. 

Order of reference cannot be granted 
at special term unless docketed at pre- 
ceding regular term. — An order of ref- 
erence cannot be granted at a special 
term in any case not docketed at the pre- 
ceding regular term. Simms v. Phillips, 
46 S. C. 149, 24 S. E. 97, 100. 



But if no objection is raised any cause 
may be heard. — Where a party without 
objection participates at an extra term 
of the circuit court in a trial of a cause 
not docketed on the calendar of the pre- 
ceding regular term he will be deemed 
to have waived his objection that such 
cause was not docketed on the calendar 
of the said regular term. Rivers v. 
Priester, 58, S. C. 194, 36 S. E. 543, 546. 

The requirements as to publication as 
set out by this section do not apply to 
the ordering of a special court under §§ 
43, 44. State v. Davis, 88 S. C. 204, 70 
S. E. 417, 419. 

Cited but not construed in Haughton 
v. Order of U. C. T., 108 S. C. 73, 93 S. 
E. 393. 



§ 70. Petit jurors in common pleas and general sessions. — Petit jurors 
summoned to attend the court of general sessions in any county, except 
the county of Charleston, shall also attend and serve as jurors for the court 
of common pleas next ensuing in and for said county, except as otherwise 
provided in section 625. 

1932 Code, § 70; Civ. P. '22, § 67: Civ. P. '12, § 34; Civ. P. '02, § 29; 1870 (16), § 29. 



§ 71. Adjournment of circuit courts. — The judge of the circuit court shall 
have power to direct any circuit court in this circuit to be adjourned over 
to a future day designated in a written order to the clerk of said court, 
whenever there is a dangerous and general disease at the place where said 
court is usually holden. 
1932 Code, § 71; Civ. P. '22, § 68; Civ. P. '12, § 35; Civ. P. '02, § 30; 1870 (16), § 30. 



See § 67 for adjournment of circuit 
courts. 

Judge cannot continue existence of a 
term after its expiration fixed by law. 

— When the term of court fixed by law 
has expired, the judge has no power to 
continue its existence and convene it at 
another time. Ex parte Lilley, 7 S. C. 
373. 

But may order adjournment from day 
today till a fixed day before next court. 
— But judge may order adjournment of 
court from day to day till a fixed day 



before the next succeeding court, and 
try a cause on the day. DeLeon v. Bar- 
rett, 22 S. C. 412. 

Inquiry as to conditions cannot be 
made after order of adjournment. — An 
adjournment having been made under 
this section because of the condition 
herein mentioned, no inquiry can be 
made as to whether such conditions ac- 
tually existed. Adicks v. Allison & Brat- 
ton, 21 S. C. 256; cited in Haughton v. 
Order of U. C. T., 108 S. C. 73, 93 S. C. 
393, 395. 



§ 72. Before whom circuit judge may qualify. — The circuit judges of this 
State, upon their election, shall qualify by taking the oaths required by 
the Constitution of this State before a justice of the Supreme Court, a 
circuit judge, a clerk of the Supreme Court, or a clerk of the court of com- 
mon pleas, or a probate judge of the county, and shall forthwith enter 
upon their duties; and said oaths must be filed in the office of the secretary 
of state. 

1932 Code, § 72; Civ. P. '22, § 69; Civ. P. '12, § 36; Civ. P. '02, § 31; 1870 (16), § 31; 
(17) 502; 1898 (22) 688. 

§ 73. Circuit courts made courts of record. — The circuit courts herein 
established shall be courts of record, and the books of record thereof shall, 
at all times, be subject to the inspection of any person interested therein. 



§ 73 



Code of Civil Procedure 



Page 52 



1932 Code, § 73; Civ. P. '22, § 70; Civ. P. '12, § 37; Civ. P. '02, § 32; 1870 (14), § 32. 



§ 74. Clerk and deputy clerk of circuit court. — The clerk elected in each 
county pursuant to section 27 of article V of the Constitution shall be clerk 
of the courts of general sessions and common pleas, and may appoint a 
deputy, who may perform the duties of clerk, for whose acts such clerk 
shall be responsible, and a record of whose appointment shall be made in 
the clerk's office, and such appointment may be revoked at the pleasure of 
the clerk; and in case no clerk exists, the judge shall have authority to 
appoint a person who shall perform the duties of clerk, and said deputy 
clerk, or the one appointed by the judge, shall be required to give the usual 
bond before entering on the duties of the office. 
1932 Code, § 74; Civ. P. '22, § 71; Civ.. P. '12, § 38; Civ. P. '02, § 33; 1870 (16). § 33. 

A deputy clerk may perform any 
duty that his principal may perform. — 

A deputy clerk of the court may per- 
form any and all the duties pertaining 
to the office of his principal. Linley v. 
Cit. National Bank, 108 S. C. 372, 94 
S. E. 874, 877. 

Generally as to the foregoing chapter. 
—Proceedings of a circuit court, held 
by the judge of another circuit, at a 



time unauthorized by law, are void. 
Ex parte De Hay, 3 S. C. 564. 

Where, after the regular session of a 
circuit court has commenced, an act 
transfers the county to another circuit 
and fixes another day for holding the 
court, it has jurisdiction to continue 
its session and to try cases. Shelton v. 
Mabin, 4 S. C. 451. 



CHAPTER 3 
County Courts 

Article 1. General Provisions, § 75. 

Article 2. The Civil Court of Florence, § 102. 

Article 3. County Court in and for Greenville County, § 118. 

Article 4. County Court of Orangeburg, § 141. 

Article 5. County Court of Richland County, § 164. 

Article 6. County Court of Spartanburg County, § 182. 



ARTICLE 1 



General Provisions 



75, 76. Establishment. 

77. Jurisdiction. 

78. A court of record. 

79. Pleading and practice. 

80. Laws applicable. 

81. Appeals. 

82. 83, and 88. Jurors. 
84, 85. County judge. 

86. Terms. 

87. Grand jury. 



89. 96, 97. Solicitor. 

90. Clerk. 

91. Sheriff. 

92. Bailiffs. 

93. Compensation of jurors and wit- 

nesses. 

94. 95. Magistrate. 

98, 99. Judge and solicitor. 

100. Stenographer. 

101. Counties excepted. 



§ 75. Establishment* — petition — election. — Whenever one-third of the 
qualified registered electors of any county in this State shall file a petition 
with the clerk of the circuit of such county, praying for an election 
to be held in such county on the question of the establishment of a county 



Page 53 County Courts § 79 

court therein, it shall be the duty of the said clerk within ten days to make 
an order thereon, and serve the same on the commissioners of election, 
requiring the said commissioners of election of such county to hold an elec- 
tion, after first giving at least thirty days' notice thereof in the newspapers 
of such county, upon the question of establishing a county court in such 
county, not later than sixty days nor earlier than forty days thereafter. 
Said petition shall be accompanied by a certificate of the board of super- 
visors of registration that the names appearing upon said petition consti- 
tute one-third of the qualified registered electors of such county: provided, 
that an election on said question shall not be had in any county oftener 
than once in four years; that at such election the question of the establish- 
ment of such county court shall be submitted to the electors in this form: 

"Shall a county court be established for the county of ...?" 

inserting the name of the county in which the electors voting are resident, 
and upon this question the electors shall vote "Yes" or "No." 

1932 Code, § 75; Civ. P. '22, § 72; Civ. C. '12, § 3847; Civ. C. '02, § 2750; 1900 (23) 
322. 

§ 76. Establish on a majority vote of the county. — In the event a majority 
of the qualified electors voting at such election in any one or more of the 
counties of the State shall vote "Yes" upon such question, then such county 
court shall be, and hereby is, established in and for each of the counties in 
which a majority of the qualified electors so vote, with such jurisdiction 
and powers as is hereinafter provided. 

1932 Code, § 76; Civ. P. '22, § 73; Civ. C. '12, § 3848; Civ. C. '02, § 2751; 1900 
(23) 322. 

§ 77. Jurisdiction in criminal and civil cases. — The said county court shall 
have jurisdiction to try and determine all criminal cases, except cases for 
murder, manslaughter, rape and attempt to rape, arson, common law 
burglary, bribery and perjury. The said court shall likewise have jurisdic- 
tion to try and determine all civil cases and special proceedings, both at 
law and in equity, where the value of the property in controversy or the 
amount claimed does not exceed one thousand dollars, and shall likewise 
hear and determine appeals taken from judgments rendered by magistrates: 
provided, that the county court shall not have jurisdiction to try any action 
involving the title to real estate. 

1932 Code, § 77; Civ. P. '22, § 74; Civ. C. '12, § 3849; Civ. C. '02, § 2752; 1900 
(23) 322. 

§ 78. Court of record. — The said county court shall be a court of record, 
and the same presumption in favor of its jurisdiction and the validity of its 
judgments shall be indulged as in the case of judgments rendered by the 
circuit court. 

1932 Code, § 78; Civ. C. '22, § 75; Civ. C. '12, § 3850; Civ. C. '02, § 2753; 1900 
(23) 322. 

§ 79. Forms of pleading and practice. — The same form of pleading and the 
same rules of procedure, practice and evidence shall obtain in the said 
county court as is provided by law for the conduct and trial of cases, civil 
and criminal, in the circuit courts: provided, in all criminal cases wherein 
the punishment does not exceed a fine of one hundred dollars and im- 



§ 79 Code of Civil Procedure Page 54 

prisonment for thirty days, the same shall be tried without presentment 
by a grand jury on information filed by the county solicitor. 

1932 Code, § 79; Civ. P. '22, § 76; Civ. C. '12, § 3851; Civ. C. '02, § 2754; 1900 
(23) 322. 

§ 80. General laws applying to county courts. — All general laws and statu- 
tory provisions applying generally to the circuit courts of this State and 
trials of causes therein shall apply to the said county court, and the con- 
duct and trial of causes therein, where not inconsistent with any of the pro- 
visions of this article. 

1932 Code, § 80; Civ. P. '22, § 77; Civ. C. '12, § 3852; Civ. C. '02, § 2755; 1900 
(23) 322. 

§ 81. Appeals from judgments. — The right of appeal shall exist from the 
judgment of the said county court to the circuit court: provided, that on 
appeal to the circuit court the same shall be heard by the presiding judge 
without a jury, as in case of appeals from courts of magistrates, and all of 
the rules, practice and procedure now governing appeals from the said 
courts of magistrates shall apply to appeals from the county court to the 
circuit court, and the circuit court shall have the same power in passing 
upon and deciding the same as now possessed in passing upon and deciding 
appeals from the courts of magistrates: provided, further, that in all appeals 
taken from the judgment of the county court to the circuit court, the ste- 
nographer of the county court shall make in writing a transcript of the 
testimony and other proceedings had in the cause in the county court, 
certified by the county judge, and lodge the same with the clerk of the 
circuit court at least fifteen days before the next term of the said circuit 
court, upon being paid by the party so appealing three cents per hundred 
words for the said transcript. In case of the failure or refusal of the party 
so appealing to pay for the said transcript, such appeal shall be dismissed 
by the circuit court as for want of prosecution; provided, if the party appeal- 
ing makes it appear by affidavit that he is not able to pay for such tran- 
script of the testimony, then the stenographer shall furnish the same free 
of charge: provided, that in no case shall the stenographer's fee exceed ten 
dollars. In case the attorneys for the appellant and respondent shall agree 
upon a statement of the case as prepared by them for the hearing before 
the circuit court, such statement of the case shall be a sufficient return 
from the county court, and no transcript or other paper from the county 
courts shall be necessary. 

1932 Code, § 81; Civ. P. '22, § 78; Civ. C. '12, § 3853; Civ. C. '02, § 2756; 1900 
(23) 322. 

§ 82. Rights of challenge of jurors in county courts. — In the selection of a 
jury for the trial of criminal cases in said county court, the accused, when 
charged with a misdemeanor, shall be entitled to peremptory challenges 
not exceeding three, and the State two; and in the trial of cases of felony, 
the accused shall be entitled to peremptory challenges not exceeding five, 
and the State three. In cases where there are two or more persons jointly 
indicted and so tried, the accused shall be jointly entitled to six peremp- 
tory challenges in cases of misdemeanor and eight peremptory challenges 
in cases of felony, and no more. 

1932 Code, § 82; Civ. P. '22, § 79; Civ. C. '12, § 3854; Civ. C. '02, 5 2757; 1900 
(23) 322. 



Page 55 County Courts § 87 

§ 83. Petit jury — trial without a jury. — Where a jury is required by law in 
the trial of causes, civil and criminal, in said court, such jury shall consist 
of six persons. All criminal cases wherein the punishment does not exceed 
a fine of one hundred dollars or imprisonment for thirty days shall be tried 
before the county judge without a jury, unless a trial by jury is demanded 
by the accused. Such cases wherein a trial by jury is not so demanded shall 
be carried to the foot of the calendar, to await trial by the county judge 
after the jury cases for the term have been disposed of. 

1932 Code, § 83; Civ. P. '22, § 80; Civ. C. '12, § 3855; Civ. C. '02, § 2758; 1900 
(23) 322. 

§ 84. Judge — election — term, etc. — At the next ensuing general election 
the qualified electors of each of the counties in which a majority of the said 
electors shall have voted for the establishment of said county court, shall 
elect a resident attorney at law thereof as county judge. Such county judge 
shall be the presiding judge of the county court, and shall hold his office 
for four years and until his successor has been elected and has qualified. 
The said county judge, before entering upon the duties of his office, shall 
take the same oath of office as that required by law of circuit judges, and 
shall be commissioned in the same manner as circuit judges. 

1932 Code, § 84; Civ. P. '22, § 81; Civ. C. '12, § 3856; Civ. C. '02, § 2759; 1900 
(23) 322. 

§ 85. Jurisdiction. — As to all cases and special proceedings within the 
jurisdiction of the county court and pending therein, the county judge of 
the county shall have the same jurisdiction with reference thereto, both in 
open court and at chambers, as is possessed by circuit judges over cases 
pending in the circuit courts over which they are presiding or in the cir- 
cuits in which they are resident. 

1932 Code, § 85; Civ. P. '22, § 82; Civ. C. '12, § 3857; Civ. C. '02, § 2760; 1900 
(23) 322. 

§ 86. Terms. — The said county court shall hold its first term on the first 
Monday in the calendar month next succeeding the election and qualifica- 
tion of said county judge, and hold a term beginning on the first Monday in 
every alternate month thereafter: provided, should the time at which any 
term of said court is fixed conflict with the time of holding the circuit court 
for such county, then the term of the county court shall begin on the Mon- 
day succeeding the time for the final adjournment of the circuit court. The 
said county court shall continue in session at each of its said terms until the 
business before it has been disposed of; and shall be open for the trial of 
cases, civil and criminal, from the beginning to the end of each of its 
said terms. 

1932 Code, § 86; Civ. P. '22, § 83; Civ. C. '12, § 3858; Civ. C. '02, § 2761; 1900 
(23) 322. 

§ 87. Grand jury. — The grand jury as drawn in accordance with law for 
service upon the court of general sessions in each of the said counties shall 
constitute the grand jury for the said county court, and shall meet with the 
said county court at each of its terms, except the term next succeeding each 
session of the circuit court, at which term the grand jury need not meet 



§ 87 Code of Civil Procedure Page 56 

with the county court. 

1932 Code, § 87; Civ. P. '22, § 84; Civ. C. '12, § 3859; Civ. C. '02, § 2762; 1900 
(23) 322. 

§ 88. How jurors shall be drawn. — The board of jury commissioners as 
constituted by law in each of the counties of the State for the drawing of 
jurors for the circuit courts shall constitute the board of jury commissioners 
for the drawing of jurors to attend upon the sessions of the county court, 
and the law relating to the qualifications, drawing and summoning of jurors 
for attendance upon the circuit courts shall apply to the qualifications, 
drawing and summoning of jurors for the county court: provided, that not 
more than eighteen persons shall be drawn and summoned to attend at the 
same time at any session of the county court unless the court shall other- 
wise order. Jurors drawn and summoned shall appear and attend upon the 
sessions of the said county court for which summoned until excused or dis- 
charged by the judge presiding: provided, that service as a juror in the 
county court shall not be held to exempt the juror from service as such in 
the circuit court in the same year. 

1932 Code, § 88; Civ. P. '22, § 85; Civ. C. '12, § 3860; Civ. C. '02, § 2763; 1900 
(23) 322. 

New trial for unlawful interference constable, for constable to select and 

with drawing of jury is required, even impanel jury upon whom defendant 

though there was no proof that rights of could rely to render judgment without 

plaintiff were affected, where defendant prejudice. Orr v. Jeffcoat, 180 S. C. 66; 

in his affidavit denying charges against 185 S. E. 41. 
him admitted he made offer of $3 to 

S 89. Duty of the county solicitor.— It shall be the duty of the county 
solicitor to prepare and, through the presiding judge of the court of general 
sessions, submit to the grand jury, while in attendance upon the court of 
general sessions, bills of indictment in all cases pending in the county court 
where the punishment exceeds a fine of one hundred dollars or imprison- 
ment for thirty days, and have not been previously acted on by the grand 
jury; and the grand jury shall act thereon, and report the same to the pre- 
siding judge, and the said judge shall direct the clerk of the court of general 
sessions to report the same to the presiding judge of the county court at its 
next ensuing term. All cases in which bills of indictment are so found shall 
stand for trial by the county court as though found by the grand jury while 
in attendance upon the county court. 

1932 Code, § 89; Civ. P. '22, § 86; Civ. C. '12, § 3861; Civ. C. '02, § 2764; 1900 
(23) 322. 

§ 90. Clerk of circuit court ex officio clerk of county court. — The clerk of 
the circuit court shall be ex officio clerk of the county court, and shall keep 
such calendars, minutes and records of the said county court, and the 
causes therein pending, and attend and perform such duties as the clerk 
thereof, as is required of him by law as clerk of the circuit court. For 
services performed as clerk of the county court he shall receive the same 
compensation as if performed by him as clerk of the circuit court. 

1932 Code, § 90; Civ. P. '22, § 87; Civ. C. '12, § 3862; Civ. C. '02, § 2765; 1900 
(23) 322. 

§ 91. Duty of sheriff. — The sheriff of the county shall attend upon all ses- 
sions of the said county court, and shall be subject to the orders thereof , 



Page 57 County Courts § 94 

and shall execute the orders, writs and mandates of the said county court 
as required by law of him with reference to the circuit court. For all such 
service he shall receive the same compensation as is allowed by law for 
similar services in the circuit court: provided, that for serving each venire 
for the county court, the sheriff shall receive the sum of ten dollars. 

1932 Code, § 91; Civ. P. '22, § 88; Civ. C. '12, § 3863; Civ. C. '02, § 2766; 1900 
(23) 322. 

§ 92. Bailiffs — appointment — compensation. — The presiding judge of the 
said county court may appoint a sufficient number of bailiffs, not exceed- 
ing three, to attend upon the said court, and be subject to the orders thereof. 
Such bailiffs shall receive as compensation for their services one dollar per 
day for the time actually engaged, and shall not be retained in attendance 
upon the court longer than the exigencies of the business of the court 
shall require. 

1932 Code, § 92; Civ. P. '22, § 89; Civ. C. '12, § 3864; Civ. C '02, § 2767; 1900 
(23) 322. 

§ 93. Compensation of jurors and witnesses. — Grand and petit jurors in 
attendance upon the sessions of the said county court shall receive as a com- 
pensation for their services one dollar per day, and five cents per mile 
for necessary travel in going to and returning from the county seat. Wit- 
nesses in attendance upon the said county court shall receive the same 
compensation as witnesses in attendance upon the circuit court. 

1932 Code, § 93; Civ. P. '22, § 90; Civ. C. '12, § 3865; Civ. C. '02, § 2768; 1900 
(23) 322. 

§ 94. Criminal jurisdiction and duties of magistrates in counties where 
county courts established. — The jurisdiction of magistrates in criminal 
cases in all counties wherein said county court shall be established is hereby 
abolished: provided, it shall be the duty of said magistrates, and they shall 
have the power, to issue warrants and hold preliminary examinations in 
all criminal cases, and take such action therein as is now provided by law 
in criminal cases beyond their jurisdiction; in committing or binding over 
defendants and witnesses, it shall be the duty of said magistrates to commit 
and bind over for trial at the next ensuing session of the county court — 
except in those cases over which the county court has no jurisdiction, in 
which case the said magistrates shall commit or bind over for trial in the 
court of general sessions: provided, further, it shall be the duty of said 
magistrates, in binding over witnesses, to appear and testify, on behalf of 
the State, before the county court in cases wherein the punishment ex- 
ceeds a fine of one hundred dollars or imprisonment for thirty days, to 
insert a provision in the recognizance requiring said witnesses to appear 
and testify in said case before the grand jury at the next ensuing term of 
the circuit court, when the said next ensuing term of the circuit court is 
appointed by law to be held before a term of the county court; it shall be 
the duty of said magistrates, immediately after committing or binding 
over a defendant for trial, to lodge with the clerk of the court by which 
the said defendant is to be tried, all papers and proceedings connected with 
the said case: provided, that the circuit solicitor shall have the power to 
direct what cases may be tried before "the court of sessions in all cases 
when the said court has concurrent jurisdiction with the county court. 



§ 94 Code of Civil Procedure Page 58 

1932 Code, § 94; Civ. P. '22, § 91; Civ. C. '12, § 3866; Civ. C. '02, § 2769; 1900 
(23) 322. 

§ 95. Civil jurisdiction of magistrates in counties where county courts 
established. — The jurisdiction of magistrates in civil cases and special pro- 
ceedings in all counties wherein said county court shall be established is 
hereby limited to cases and proceedings wherein the value of the property 
in controversy or the amount claimed does not exceed twenty-five dollars. 
1932 Code, § 95; Civ. P. '22, § 92; Civ. C. '12, § 3867; Civ. C. '02, § 2770; 1900 
(23) 322. 

This section inapplicable to magis- Maxwell Bros. & Quinn, 176 S. C. 404; 
trates in Richland County. Pickens v. 180 S. E. 348. 

§ 96. Solicitor — appointment — term, etc. — It shall be the duty of the Gov- 
ernor, upon the recommendation of the members of the General Assembly 
from each of the counties where said county court has been established, to 
appoint for each of said counties a resident attorney at law as county 
solicitor, whose term of office shall continue until his successor shall have 
been elected by the qualified electors of the county at the next succeeding 
general election, and until his said successor qualifies. After the first term 
herein provided for, the term of the county solicitor shall be for four 
years, and until the election and qualification of a successor, the qualified 
electors electing such successor at the general election occurring every 
four years. 

1932 Code, § 96; Civ. P. '22, § 93; Civ. C. '12, § 3868; Civ. C. '02, § 2771; 1900 
(23) 322. 

§ 97. Duties of solicitor. — The said county solicitor shall represent the 
State in all cases brought before the said county court wherein the State is 
a party, and shall have the same powers and perform the same duties with 
reference thereto as a circuit solicitor with reference to cases brought be- 
fore the court of general sessions. He shall also attend all inquests held by 
the coroner, aid in procuring evidence, and represent the State in the ex- 
amination of witnesses -at such inquests; and he shall ex officio be the legal 
adviser of the county board of commissioners without extra compensation. 
1932 Code, § 97; Civ. P. '22, § 94; Civ. C. '12, § 3869; Civ. C. '02, § 2772; 1900 
(23) 322. 

Solicitor may enter nolle prosequi at Hence, where nolle prosequi was en- 

any time before jury is impaneled and tered by solicitor before jury was im- 

sworn, without consent of the court. paneled and sworn, subsequent proceed- 

State v. Charles, 183 S. C. 188; 190 S. E. ings at direction of court, resulting in 

466. conviction, were nugatory. Ibid. 

§ 98. Salaries of judges and solicitors. — The said county judge shall re- 
ceive as compensation for his services the sum of one thousand dollars per 
annum, and the said county solicitor the sum of three hundred dollars per 
annum, to be paid by the county. 

1932 Code, § 98; Civ. P. '22, § 95; Civ. C. '12, § 3870; Civ. C. '02, § 2773; 1900 
(23) 322. 

§ 99. Judge and solicitor prohibited practicing in cause of which county 
court has jurisdiction. — The said county judge and county solicitor are 
prohibited from practicing as attorneys at law in any cause or matter of 
which the said county court has jurisdiction, or may acquire jurisdiction, 



Page 59 The Civil Court of Florence § 102 

and upon conviction of any willful violation of this section, the offender 
shall be adjudged to have forfeited his office and shall be sentenced to pay 
a fine of not less than two hundred nor more than five hundred dollars, 
and be imprisoned for a period of not less than one month nor more than 
six months: provided, the said county solicitor shall be at liberty to prac- 
tice in all causes and matters on the civil side of said court. 

1932 Code, § 99; Civ. P. '22, § 96; Civ. C. '12, § 3871; Civ. C. '02, § 2774; 1900 
(23) 322. 

§ 100. Judge shall appoint a stenographer — salary of, etc. — The county 
judge in each of the counties wherein the said county court is established 
shall appoint for the said county court an official stenographer, who shall 
attend upon the sessions of the said court and perform the same duties in 
connection therewith as are performed by circuit stenographers in the 
circuit courts. The said stenographer shall receive from the county wherein 
he is appointed a salary of three hundred dollars per year. 

1932 Code, § 100; Civ. P. '22, § 97; Civ. C. '12, § 3872; Civ. C. '02, § 2775; 1900 
(23) 322. 

§ 101. Counties excepted. — The provisions of this article shall not apply to 
the counties of Abbeville, Anderson, Bamberg, Beaufort, Berkeley, Charles- 
ton, Chester, Chesterfield, Clarendon, Cherokee, Dorchester, Edgefield, 
Fairfield, Florence, Greenwood, Georgetown, Horry, Marion, Lancaster, 
Laurens, Lexington, Marlboro, Orangeburg, Oconee, Pickens, Saluda, Sum- 
ter, Union, Williamsburg, Kershaw, Barnwell, Spartanburg, Greenville 
and York: provided, that sections 77 through 100, in so far as the same shall 
pertain to or have any effect or bearing whatsoever upon the county court 
of Richland County, as now created, constituted, operating, and proceed- 
ing under sections 164 through 181, inclusive, or amendments thereto, are 
hereby repealed. 

1932 Code, § 101; Civ. P. '22, § 98; Civ. C. '12, § 3873; Civ. C. '02, § 2776; 1900 
(23) 322; 1934 (38) 1200. 



ARTICLE 2. 

The Civil Court of Florence 

102, 103. Jurisdiction. 111. Bailiffs. 

104, 105, 112. Jurors. 112. Witnesses. 

106, 107. Judge. 113. Pleading and practice. 

108. Stenographer. 114. Sessions. 

109. Clerk. 115, 117. Appeals. 

110. Sheriff. 116. Transfer of causes. 

§ 102. Established — territorial jurisdiction. — A court inferior to the circuit 
court, and to be known as "The Civil Court of Florence," is hereby estab- 
lished for the city of Florence and the following territory adjacent thereto, 
in the county of Florence, to wit: the townships of Florence, Black Swamp, 
Jefferies, McMillian, Cain, Pee Dee, Lake, Lee, Lake City, Motts, Lynch, 
Effingham, James Cross Roads, Cartersville, Timmonsville, Ebenezer and 
Tans Bay. 

1932 Code, § 102; 1929 (36) 119. 



§ 102 Code of Civil Procedure Page 60 

Florence civil court has jurisdiction of there. McLaughlin v. International Har- 
foreign corporation which has agent in vester Co., 173 S. C. 338; 175 S. E. 810. 
city of Florence and is doing business 

§ 103. Jurisdiction. — The said civil court shall have jurisdiction to try and 
determine all civil cases and special proceedings, both at law and in equity, 
where the value of the property in controversy, or the amount claimed, 
does not exceed the sum of four thousand ($4,000.00) dollars, but such 
jurisdiction shall not extend to cases where the title to real estate is in 
question. Provided, that no suit shall be brought, commenced or filed in 
said court unless and until the plaintiff shall have made a deposit with the 
clerk of said court to pre-pay the costs of the action, the minimum of 
which deposit shall be two and 50/100 ($2.50) dollars. 
1932 Code, § 103; 1929 (31) 119; 1932 (37) 1286; 1934 (38) 1537. 

Effect of counterclaim in excess of held that where the jurisdiction of a 
jurisdictional amount. ■ — The question court of limited jurisdiction has been 
whether the action of a defendant in in- fixed by the plaintiff's demand, the in- 
terposing a counterclaim for more than terposition by defendant of a counter- 
the jurisdictional amount fixed by sta- claim in excess of such jurisdictional 
tute ousts the court of jurisdiction to try amount, will not oust the court's juris- 
plaintiff's cause of action, is an inter- diction. Dupree v. Gilland, 156 S. C. 109, 
esting one. The general rule is that the 152 S. E. 873. See, also, Corley v. Evans, 
jurisdiction is determined by the amount supra. 

claimed by the plaintiff without refer- See the catchline "Effect of Counter- 
ence to any defense or plea set up by the claim," under § 257, analysis line "Sub- 
defendant. Corley v. Evans, 69 S. C. 520, division (1)," II. 
48 S. E. 459, 460. Under this rule it is 

§ 104. Jurors. — The board of jury commissioners as constituted by law 
in the county of Florence for the drawing of jurors for the circuit courts 
shall constitute the board of jury commissioners for the drawing of jurors 
for the said civil court and the law relating to the qualifications, drawing 
and summoning of jurors for attendance upon the circuit courts shall 
apply to the qualifications, drawing and summoning of jurors for the said 
civil court, provided that no more than twenty persons shall be drawn 
and summoned to appear at the same time at any session of the civil court 
unless the court shall otherwise order. The jurors drawn and summoned 
shall appear and attend the sessions of the said court until excused or dis- 
charged by the judge presiding: provided, that service as a juror in said 
court shall be held to exempt a juror from service as such in the said 
civil court or in the circuit court for the same year. 
1932 Code, § 104; 1929 (36) 119. 

§ 105. Juries. — Juries in the said civil court shall consist of six persons. 
1932 Code, § 105; 1929 (36) 119. 

§ 106. Judge. — There shall be a judge of said civil court who shall be an 
attorney, resident within the jurisdictional limits thereof, with at least five 
years actual experience in the practice of law, and who shall be commis- 
sioned by the Governor, upon the recommendation of the majority of the 
members of the bar residing within said jurisdictional limits, said commis- 
sion to become effective upon confirmation by the Senate. He shall hold 
office for four years and until his successor has been appointed and has 
qualified. Said judge, before entering upon the duties of h'; office, shall 
take the same oath of office as required by law of circuit judges and shall 



Page 61 The Civil Court of Florence § 110 

be commissioned in the same manner as circuit judges. He shall receive 
as compensation the sum of thirty-six hundred ($3,600.00) dollars per an- 
num, to be paid in monthly installments by the county treasurer upon 
the warrant of the board of county commissioners. The said judge shall 
be debarred from practice of law in all matters within the jurisdiction of 
said civil court. 

1932 Code, § 106; 1929 (31) 119; 1934 (38) 1537; 1939 (41) 315. 

§ 107. Powers of judge. — As to all cases and special proceedings within 
the jurisdiction of the said civil court and pending therein, the said judge 
shall have the same jurisdiction with reference thereto both in open court 
and at chambers, as is possessed by circuit judges over cases pending in the 
circuit courts, over which they are presiding, or in the circuit in which they 
are resident, and said judge shall have the power to grant writs of injunc- 
tion and habeas corpus, and shall also have the power to punish any per- 
son or 23ersons guilty of any act in contempt of the said court. 
1932 Code, § 107; 1929 (36) 119. 

§ 108. Stenographer. — There shall be an official stenographer of the said 
court, who shall be appointed by the judge thereof and who shall hold 
office during the pleasure of said judge. He shall receive as compensation 
the sum of twelve hundred ($1200.00) dollars per annum. He shall, upon re- 
quest of any parties litigant furnish transcripts, for which he shall be al- 
lowed to charge the party furnished same a fee of twenty-cents per one 
hundred words, which fee shall be paid by the party so furnished and 
which shall be considered a necessary disbursement in the taxation of 
costs. 

1932 Code, § 108; 1929 (31) 119; 1939 (41) 315. 

§ 109. Clerk — records — judgments. — The clerk of the circuit court shall 
be ex officio clerk of the said civil court and shall keep such calendars, 
minutes and records of the said civil court and the causes pending therein, 
and attend and perform such duties as clerk thereof, as is required of him 
by law as clerk of the circuit court. Judgments recovered in the civil 
court shall be entered of record and recorded in the same books as judg- 
ments of the circuit court. The clerk shall make up, before each term of 
court, a jury issue docket, on which shall be placed all matters to be tried 
before a jury, that are at issue, under the pleadings, at least seven days 
before the commencement of the term. All cases shall be tried in their 
order on the docket unless changed or varied by the court for its conven- 
ience, and in the furtherance of justice. For services performed as clerk 
of said civil court the clerk shall receive such fees in civil matters as are 
now allowed him by law. 
1932 Code, § 109: 1929 (36) 119. 

§ 110. Sheriff. — The sheriff of the county shall attend upon all sessions of 
the said civil court, and shall be subject to the orders thereof, and shall 
execute the orders, writs and mandates of the said civil court as is required 
of him with reference to the circuit court. For all such services he shall 
receive the same compensation allowed by law for similar service in the 



§ 110 Code of Civil Procedure Page 62 

circuit court: provided, that for serving each venire in the civil court he 
shall be allowed the sum of thirty ($30.00) dollars. 
1932 Code, § 110; 1929 (36) 119. 

§ 111. Bailiffs. — The presiding judge of the said civil court may appoint 
a sufficient number of bailiffs, not exceeding two, to attend upon the said 
court and execute the orders thereof. Such bailiffs shall receive as com- 
pensation the sum of two ($2.00) dollars per day for the time actually en- 
gaged, and shall not be retained in attendance upon the court longer than 
the exigencies of the business of the court shall require. 
1932 Code, § 111; 1929 (36) 119. 

§ 112. Compensation of jurors — of witnesses. — Jurors in attendance upon 
the sessions of the said court shall receive the same compensation as jurors 
in attendance upon the circuit court. Witnesses in attendance upon the 
said civil court shall likewise receive the same compensation as witnesses 
in attendance upon the sessions of the circuit court. 
1932 Code, § 112; 1929 (36) 119. 

§ 113. Pleadings and practice. — The same forms of pleading and the same 
rules of practice and evidence shall obtain in the said civil court as are 
provided by law for the conduct and trial of civil cases in the circuit courts. 
1932 Code, § 113; 1929 (36) 119. 

§ 114. Sessions. — The said court shall hold its sessions in the county court- 
house, at the county seat of the county of Florence, the first session to be 
held on the first Monday of the calendar month next succeeding the ap- 
pointment and qualification of the judge thereof and thereafter a term 
shall be held beginning on the first Monday in each and every month. The 
said court shall continue in session in each of its said terms until the busi- 
ness before it has been disposed of, and shall be open for the trial of cases 
from the beginning to the end of each of its said terms. The judge of the 
said court shall maintain open court at all times for the hearing of causes 
without a jury, provided that during the month of August of each year 
there shall be no session of said court held. 
1932 Code, § 114; 1929 (36) 119. 

§ 115. Appeals from magistrates. — The said civil court shall likewise have 
jurisdiction to hear and determine appeals from all magistrate's courts 
within the territorial limits of its jurisdiction. 
1932 Code, § 115; 1929 (36) 119. 

§ 116. Transfer of causes. — All cases now pending in the circuit court 
of which the said civil court shall have jurisdiction shall be transferred to 
the said civil court for trial upon motion by either party thereto. 
1932 Code, § 116; 1929 (36) 119. 

§ 117. Appeals. — Appeals shall be taken from said civil court in all cases 
direct to the Supreme Court and shall be presented in the same manner 
and under the same rules as are now prescribed for appeals from the circuit 
court. 

1932 Code, § 117; 1929 (36) 119. 



Page 63 



County Court in and for Greenville 



§ 120 



ARTICLE 3. 
County Court in and for Greenville County 



118. Established. 

119. Jurisdiction. 

120. Appeals. 

121. Court of record. 

122. Transfer of causes. 

123. Statutes applicable. 

124. Procedure. 

125. Grand jury — indictments. 

126. Juries — jury trials. 

127. Judge — powers. 

128. Appeals. 



129. Terms. 

130. Jury commissioners — jurors. 

131. Clerk — records — cost in civil cases. 

132. Sheriff — cost in civil cases. 

133. Pay of jurors and witnesses. 

134. Judge. 

135. County solicitor. 

136. Court crier — bailiffs. 

137. Stenographer. 

138. Costs. 

139. Saving clause. 



§ 118. Established. — A majority of the qualified electors of the county of 
Greenville having voted at the general election of 1920 in favor of the 
establishment of a county court in and for said county as provided by the 
act of the General Assembly approved February 19, 1920, a county court 
is established in and for said county in pursuance of the said act of the 
General Assembly with such jurisdiction as is hereinafter provided. 
1935 (39) 6. 

§ 119. Jurisdiction — civil appeals from magistrate courts. — The said county 
court shall have concurrent jurisdiction with the court of common pleas in 
all civil cases and special proceedings, both at law and in equity, where 
the amount demanded in the complaint does not exceed five thousand 
($5,000.00) dollars or when the value of the property involved does not 
exceed five thousand ($5,000.00) dollars; and in all other civil cases and 
special proceedings, both at law and in equity, in which there is no money 
demand, or in which the right involved cannot be monentarily measured. 
Provided, however, that all prior civil cases and special proceedings in 
which there is no money demand or in which the right involved cannot 
be monentarily measured are hereby validated in regard to the jurisdic- 
tion of said county court and provided, further, that in all mortgage fore- 
closures where the amount of the sum claimed in the complaint does not 
exceed the sum of five thousand ($5,000.00) dollars, that the said county 
court shall have concurrent jurisdiction with the court of common pleas 
regardless of the value of the property involved; and provided, further, 
that all prior mortgage foreclosures in the said county court are hereby 
validated in regard to the jurisdiction of said county court where the 
amount of the sum claimed in the complaint did not exceed the jurisdic- 
tional amount regardless of the value of the property involved. Said court 
shall have concurrent jurisdiction with the circuit court to hear and 
determine all appeals in civil cases from judgments rendered by magis- 
trate's courts; and the proceedings on such appeal shall be the same as 
is now provided for appeal from said last named courts to the courts of 
common pleas. 

1935 (39) 6; 1940 (41) 1714. 

§ 120. Criminal appeals from inferior courts. — The said county court shall 
have jurisdiction to hear and determine appeals in all criminal cases from 
the magistrates' court and from municipal courts, or town councils of any 
of the cities and towns in Greenville County; proceedings on such appeal 



§ 120 Code of Civil Procedure Page 64 

shall be the same as are now provided for appeal from said last named 
courts to courts of general sessions. 
1935 (39) 6. 

§ 121. Court of record. — The said county court shall be a court of record 
and have a seal inscribed with the words "County Court of Greenville", 
and the same presumption in favor of its jurisdiction and the validity of 
its judgments and decrees shall hold as in cases of judgments rendered by 
the circuit courts. 
1935 (39) 6. 

§ 122. Transfer of causes. — The said county judge shall have jurisdiction 
to remove to the court of common pleas of said county, any case where it 
may appear to his satisfaction that the case or any part thereof is not 
within the jurisdiction of the county court, or any case in which the judge 
has been of counsel, has any personal interest in, or is connected by blood 
or marriage to any of the parties to the suit. 
1935 (39) 6. 

§ 123. Statutes applicable. — All general laws and statutory provisions 
applicable generally to the circuit courts and courts of general sessions of 
this State and trial of cases therein shall apply to said county court and to 
the conduct and trial of cases therein where not inconsistent with this 
article. 
1935 (39) 6. 

§ 124. Procedure. — The same form of pleadings and the same rules of 
procedure, practice and evidence shall obtain in the county court as is pro- 
vided by law for the trial of civil and criminal cases in the circuit court 
where not inconsistent with the provisions of this section: provided, that 
the pleadings or copies thereof in cases for trial before the said court shall 
be filed in the clerk's office, as now provided by law for the circuit court, be- 
fore six o'clock in the afternoon of the Monday preceding the first day of 
the next ensuing term of the said county court, and the clerk shall forth- 
with enter the case upon the appropriate calendar. 
1935 (39) 6. 

§ 125. Grand jury — indictments. — The grand jury, as drawn in accord- 
ance with law for service upon the court of general sessions, for Greenville 
County, shall constitute the grand jury for the said county court, and need 
not meet with the said county court, except when ordered to do so by the 
county judge. The solicitor of the thirteenth judicial circuit, or the county 
solicitor, if one is provided for by law, shall prepare all bills of indictment 
wherein a person is entitled to a presentment of a grand jury, and he shall 
present said indictments to the grand jury, of such cases as the county 
court has jurisdiction, at each session of the court of general sessions, and 
it shall be the duty of the clerk of court of general sessions to certify said 
bills of indictment to the county court for trial or disposition thereof where 
true bills are found by the said grand jury. The county judge shall have 
the authority to submit to the grand jury, when called into his court, such 
bills of indictment as he may desire to submit to them, when the offenses 



Page 65 County Court in and for Greenville . § 129 

charged are within the jurisdiction of said county court. 
1935 (39) 6. 

§ 126. Juries — jury trials. — Where a jury is required by law in the trial 
of all civil and criminal cases in said court, said jury shall consist of six 
persons. In all actions either party may demand a jury trial in all cases 
in which a trial by jury is granted of right under the Constitution and 
laws of this State, but such demand must be made on or before the case is 
called for trial, and the failure to make such demand shall be a waiver of 
said right of trial by jury. The empaneling of juries in all criminal cases 
in said court shall be according to the practice now established in the 
courts of general session. In the selection of a jury for the trial of criminal 
cases in said county court, the accused, when charged with misdemeanor, 
shall be entitled to peremptory challenges not exceeding three, and the 
State two; and in the trial of cases of felony, the accused shall be entitled 
to peremptory challenges not exceeding five, and the State three. In cases 
where there are two or more persons jointly indicted and so tried, the 
accused shall be jointly entitled to four peremptory challenges in cases 
of misdemeanors and the State two, and in each case of felony, the defend- 
ants jointly shall be entitled to six peremptory challenges and the State 
four. The empaneling of juries in all civil cases in which the jury shall 
be charged with the trial of any issue shall be according to the practice 
now established in the court of common pleas, except the list of jurors now 
required by law to be furnished shall consist of ten, from which list each 
party shall alternately strike until there remains but six, which shall con- 
stitute the jury to try the case or issue. 
1935 (39) 6. 

§ 127. Judge — powers. — In all cases and special proceedings within the 
jurisdiction of the county court and pending therein, the judge of the 
county court shall have the same jurisdiction, both in open court and at 
chambers, as is possessed by the circuit judges over cases pending in the 
circuit courts over which they are presiding, or in the circuits in which 
they are residents: provided, that said county judge shall have the power 
to issue writs of habeas corpus in all cases; and to grant bail in all cases 
triable in the county court. The county court shall be open at all times, 
at the convenience of the county judge, for the purpose of taking pleas 
of guilty and imposing sentences in all criminal cases within the jurisdic- 
tion of this court with the consent of the accused. 
1935 (39) 6. 

§ 128. Appeals. — In all criminal and civil actions and special proceedings 
of which said county court shall have jurisdiction, the right of appeal 
shall be to the Supreme Court of the State, in the same manner and pur- 
suant to the same rules, practice and procedure as now govern appeals 
from circuit courts. 
1935 (39) 6. 

§ 129. Terms. — The terms of the county court of Greenville County shall 
be as follows: civil court on the first Monday in January for two weeks, on 
the first Monday in March for two weeks, on the first Monday in June for 

I.-S.C.-3 



§ 129 Code of Civil Procedure Page 66 

two weeks, on the first Monday in September for one week, on the first 
Monday in October for one week, on the first Monday in November for 
one week, and on the second Monday in December for two weeks; criminal 
court on the third Monday in February for two weeks, on the third Mon- 
day in April for two weeks, on the fourth Monday in September for two 
weeks: provided, that in addition to the terms aforesaid the judge of the 
county court shall have authority and power to call special or extra ses- 
sions of either civil or criminal court in said county at such other times as 
the judge or court shall order, and continue for such time as is necessary 
to dispose of the business' of the court: provided, the notice as provided by 
law in the court of common pleas has been given. And, provided further, 
in addition to the aforesaid terms, the Greenville County court shall be 
in session at all times and open for the transaction of such business as 
can be disposed of without a jury. And provided further, the county judge 
may in his discretion adjourn or suspend any term before or after the 
day fixed by law for the opening of the term. 
1935 (39) 6; 1937 (40) 333. 

§ 130. Jury commissioners — drawing, summoning and attendance of 
jurors. — The board of jury commissioners, as constituted by law in said 
county for the drawing of jurors for the circuit court, shall constitute the 
board of jury commissioners for the drawing of jurors to attend upon the 
sessions of the county court, and such commissioners shall, upon the order 
of said court, at such time as shall be fixed, from the jury box (whether the 
same has been previously drawn or not) draw a panel of petit jurors, and 
the clerk of said court shall immediately issue to the sheriff a venire con- 
taining the names of the persons thus drawn as petit jurors, which venire 
shall be returnable at such time as may be named by the said court, and 
the persons so served shall be the jurors for said court, and the law 
relating to the qualifications, drawing and summoning of jurors of 
the circuit court shall apply, except as is herein otherwise provided: 
provided, that not more than eighteen persons shall be drawn and sum- 
moned to attend the same time at any session of the county court, unless 
the court shall otherwise order. Jurors drawn and summoned shall appear 
and attend upon the sessions of the county court for which summoned 
until excused or discharged by the judge thereof: provided, that services 
as jurors in the county court shall not be held to exempt a juror from 
services as such in the circuit court in the same year. The board of jury 
commissioners as constituted by law in said county, for the drawing of 
grand and petit jurors for the circuit court shall constitute the board of 
jury commissioners for the drawing of grand and petit jurors to attend 
upon the sessions of the county court and that the provisions of law ap- 
plicable to drawing grand and petit jurors in the courts of general sessions 
shall obtain and apply in criminal cases in the county court. 
1935 (39) 6.. 

§ 131. Clerk — records — cost in civil cases. — The clerk of the circuit court 
shall be ex officio clerk of the county court, and shall keep such calendars, 
minutes and records of the said county court, and the cases pending therein, 
and attend and perform the duties as the clerk thereof, as is required of 
him by law as clerk of the circuit court. The costs of the clerk in civil 



Page 67 County Court in and for Greenville § 134 

cases in the county court shall be the same as those allowed in similar 
cases in the court of common pleas. The county commissioners of said 
county shall provide all books necessary for keeping records of said court, 
for which the clerk shall receive no additional compensation. 
1935 (39) 6, 46. 

§ 132. Sheriff — cost in civil cases. — The sheriff of the county shall attend 
upon all sessions of the said county court and shall be subject to the orders 
thereof, and shall execute the orders, writs and mandates of the said county 
court as required by law of him in reference to the circuit court. The costs 
and fees of the sheriff in civil cases in the county court shall be the same 
as those allowed in similar cases in the court of common pleas. 
1935 (39) 6. 

§ 133. Pay of jurors and witnesses. — Jurors in attendance upon the ses- 
sions of the county court shall receive as compensation for their services 
the same per diem and mileage as is allowed said jurors in the circuit 
court. Witnesses in attendance upon said county court shall receive the 
same compensation as witnesses in attendance upon the circuit court. 
1935 (39) 6. 

§ 134. Judge — further powers — term — appointment — oath — salary — vac- 
ancy — special judge — law practice. — The presiding judge of the county 
court shall possess all the powers in respect to preserving order or punish- 
ing for contempt of court as now possessed by circuit judges. The term 
of office for the county judge shall be four years from the date of the ex- 
piration of his predecessor's term. Said appointment shall be made by the 
Governor in the following manner: on the first Tuesday in December, 
1934, and every four (4) years thereafter, the Greenville Bar Association 
shall assemble in the court house at an hour to be fixed by the president of 
the association (provided, that if unable to assemble on that day, a meeting 
shall be held thereafter as quickly as possible, due notice being given by 
the president of the association) and shall select from the lawyers of 
Greenville Bar Association one of their number who shall receive a ma- 
jority vote of the lawyers present. His name shall be immediately trans- 
mitted to the chairman of the Greenville County delegation for approval or 
disapproval by the delegation. The chairman of said delegation shall forth- 
with call the delegation to meet on the question of approval or disapproval 
of the nominee of said bar association. If said delegation approves the 
selection from said association, the chairman shall immediately transmit 
his name to the Governor for appointment and the Governor shall there- 
upon appoint him, his term of office commencing on the termination of the 
office of the present Greenville County judge. If said delegation shall dis- 
approve of a nominee from said bar association, the chairman of the dele- 
gation shall immediately notify the president of the bar association to this 
effect and said association shall be called together, at a notice of not less 
than two days, to select another name and transmit to the delegation, and 
the said delegation shall act on said name as in the first instance and so on, 
until a judge has been selected by a majority of the bar association and ap- 
proved by the Greenville County delegation. The expression "Greenville 
County Bar Association" as used herein shall mean every lawyer in Green- 



§ 134 Code of Civil Procedure Page 68 

ville County admitted to practice in the Supreme Court of this State who 
has an office in Greenville County for the practice of law, but shall not in- 
clude attorneys who have been admitted to practice who are in other lines 
of business. The said county judge, before entering upon the duties of his 
office, shall take the same oath of office as required by law for circuit 
judges, and shall be commissioned in the same manner as circuit judges. 
The salary of the county judge shall be three thousand and five hundred 
($3,500.00) dollars per annum, to be paid by the county in monthly install- 
ments; said judge shall not charge on the facts, but declare the law only. 
All vacancies in the office of county judge shall be filled by appointment 
by the Governor in the same manner as provided herein for the original 
appointment. In case of absence or inability of the county judge, at the 
time fixed for holding any term of said court, the Governor may appoint 
some other suitable person, being an attorney at law, to hold said term 
of court as special county judge. The county judge, as provided for in 
this section, shall not be allowed to practice law in any court in Greenville 
County, but may practice in the probate court, U. S. district court and 
Supreme Court: provided, that no judge of the county court shall appear 
as counsel for anyone in any case transferred from the said county court 
to the court of common pleas, where he has been of counsel or where he 
is interested in the case, however remote. 
1935 (39) 6. 

§ 135. County solicitor — election — term — salary. — There shall be selected 
by the legislative delegation a county solicitor from the members of the 
Greenville bar to prosecute all criminal cases before the county court, to 
serve until January 1, 1941, and until his successor is elected and qualified. 
That the successors to the county solicitor selected by the legislative dele- 
gation, as herein provided, shall hold office for terms of four (4) years and 
until their respective successors shall have been elected and qualified. 
The successors of the county solicitor selected by the legislative delegation, 
as herein provided, shall be elected in the general election in Greenville 
County in the year 1940 and every fourth year thereafter, in like manner 
as other county officers are elected. The salary of the county solicitor shall 
be one thousand nine hundred eighty ($1,980.00) dollars a year payable 
monthly by the county treasurer upon the warrant of such county solicitor. 
1935 (39) 6; 1937 (40) 41. 

§ 136. Court crier — bailiffs. — The clerk of court of Greenville County, 
South Carolina, is hereby authorized and empowered to employ a court 
crier and two bailiffs for the county court of Greenville County at an ex- 
pense of not exceeding two ($2.00) dollars per day, each, for each day's ser- 
vice actually rendered in said court while the said court is in session. 
1935 (39) 6. 

§ 137. Stenographer The said county judge shall appoint for the said 

county court an official stenographer, who shall attend upon the sessions 
of said court and perform the same duties in connection therewith as are 
performed by the circuit stenographer in the circuit court. The said steno- 
grapher shall receive from the said county the salary of nine hundred 
($900.00) dollars per annum, to be paid by the county in monthly install- 



Page 69 



County Court of Orangeburg 



§ 142 



ments, and in addition such fees as provided by law for stenographers in 
the circuit court and courts of general sessions. 
1935 (39) 6. 



The stenographer is a ministerial of- 
ficer at the court. — The stenographer is 
an appointee and ministerial officer of 
the court. His duty to take stenographic 
notes is under the direction of the pre- 
siding judge. State v. Campbell, 131 S. 
C. 357, 127 S. E. 439, 440. 

But the power of the court to function 
does not depend on his presence. — When 
a stenographer is not available, due to 
inadequate provision for the compensa- 
tion of such an assistant or to other 
causes, the power of the court to func- 
tion may not be held to depend wholly 



upon the presence of a stenographer. 
State v. Campbell, 131 S. C. 357, 127 S. 
E. 439, 440. 

And in case of his absence the trial 
judge may make provisions for the pres- 
ervation of the records. — In case of the 
absence of the stenographer proper pro- 
visions may be made for the preserva- 
tion of the record of the court's proceed- 
ings and such provision is within the 
control of the trial judge in the exer- 
cise of a sound discretion. State v. 
Campbell, 131 S. C. 357, 127 S. E. 439, 
440. 



§ 138. Costs. — All costs and disbursements allowing the prevailing party, 
and all costs and fees allowed officers of court in actions in the court of 
common pleas shall be allowed in actions in this court. 
1935 (39) 6. 

§ 139. Saving clause. — If any part of §§ 118 thru 139 shall be declared un- 
stitutional by the Supreme Court of South Carolina, it shall not affect the 
remaining portions of said sections. 
1935 (39) 6. 



ARTICLE 4 
County Court of Orangeburg 



141. Established. 

142. Judge and solicitor. 

143. Jurisdiction. 

144. A court of record. 

145. Laws applicable. 

146. Procedure- 

147. Jurors. 

148. Jurisdiction. 

149. Appeals. 

150. Terms. 

151. Jury commissioners. 

152. Clerk. 



153. Sheriff. 

154. Jurors and witnesses. 

155. Judges' salary. 

156. Solicitor. 

157. Criminal cases. 

158. Grand jury. 

159. Equity cases. 

160. Stenographer. 

161. Transfer of causes. 

162. Costs. 

163. Quarters. 



§ 141. Established. — A county court is established, in and for the county 
of Orangeburg, with such jurisdiction, powers and limitations as may be 
hereinafter provided. 

1932 Code, § 141; 1925, (34) 161. 



See § 156, which provides for the 
circuit solicitor to be the solicitor of the 



county court of Orangeburg. 



§ 142. Judge — appointment — oath — term — vacancy. — The Governor 
shall appoint a county judge upon the recommendation of a majority of 
the members of the Orangeburg County Bar Association, at a meeting to be 
held by the said Orangeburg County Bar Association, of which five days' 



§ 142 Code of Civil Procedure Page 70 

notice shall be given by mail to the members thereof by its chairman. The 
county judge shall be a resident practicing attorney of the Orangeburg 
County bar, and shall qualify and take the oath of office provided for cir- 
cuit judges. That the term of office of the county judge shall be for four 
years from the date of his qualification, and he shall serve until his succes- 
sor is likewise appointed and shall have qualified. In case of a vacancy in 
such office, the Governor shall appoint his successor for the unexpired 
term in like manner upon the recommendation of the Orangeburg County 
Bar Association. 

1932 Code, § 142; 1925 (34) 161; 1933 (38) 564. 

§ 143. Jurisdiction — appeals. 

(a) Civil — The said county court shall have concurrent jurisdiction with 
the court of common pleas in all civil cases and special proceedings, both 
at law and in equity, in which the amount demanded in the complaint does 
not exceed three thousand ($3,000.00) dollars, or in which the value of the 
property involved does not exceed three thousand ($3,000.00) dollars; and 
in all other civil cases and special proceedings, both at law and in equity, 
in which there is no money demanded, or in which the right involved can- 
not be measured or fixed by any monetary value. 

(b) Criminal. — The said county court shall have concurrent jurisdiction 
with the court of general sessions in all criminal cases, except murder, 
manslaughter, rape, or attempt to rape, arson, common law burglary, 
bribery, perjury and forgery; and concurrent jurisdiction with the magis- 
trate courts in all criminal cases within the jurisdiction of the magistrate 
courts. 

(c) Appeals. — The said county court shall have concurrent jurisdiction with 
the court of common pleas and the court of general sessions, respectively, 
to hear and determine all appeals in civil cases and criminal cases, respec- 
tively, from judgments rendered by the magistrate courts, and all other 
inferior courts; and the proceedings on such appeals shall be the same as 
now provided for appeals in such cases from the magistrate courts to the 
court of common pleas and the court of general sessions, respectively. 

1932 Code, § 143; 1925 (34) 161. 

§ 144. To be a court of record — seal — presumption as to proceedings. — 

The said county court shall be a court of record and have a seal inscribed 
with the words: "County Court of Orangeburg County;" and the same pre- 
sumption in favor of its jurisdiction and the validity of its judgments and 
decrees shall hold as in the case of jurisdiction, judgments and decrees of 
the circuit courts. 
1932 Code, § 144; 1925 (34) 161. 

§ 145. General laws applicable unless inconsistent — entry of judgments — 
procedure in minor criminal cases. — The general laws and statutory pro- 
visions, and rules of court, applicable generally to the circuit courts of this 
State, and the trials of cases therein, shall apply to said county court and 
to the conduct and trial of cases therein where not inconsistent with this 
article: provided, that any judgment rendered may be entered upon the 
third day after such rendition, or upon the same day with leave of the 
court: and provided, that in all criminal cases wherein the punishment does 



Page 71 County Court of Orangeburg § 148 

not exceed a fine of one hundred dollars or imprisonment for thirty days, 
the same shall be tried, without presentment by a grand jury, on informa- 
tion or indictment filed by the circuit solicitor. 
1932 Code, § 145; 1925 (34), 161; 1933 (38) 564. 

§ 146. Pleadings — procedure — rules of evidence — filing of pleadings. — 

The same forms of pleadings and the same rules of procedure, practice 
and evidence shall obtain in the county court as is provided by law for 
the trial of civil and criminal cases in the circuit court where not incon- 
sistent with the provisions of this article: provided, that the pleadings or 
copies thereof in a case for trial before the said county court shall be filed 
in the office of the clerk of court, as now provided by law in the circuit 
court, before noon of the Monday preceding the first day of the next en- 
suing term of the said County court, and the clerk shall forthwith enter 
the cases upon the appropriate calendar. 
1932 Code, § 146; 1925 (34) 161. 

§ 147. Selection of juries. — (a) In the trial of all civil actions at law in the 
said county court, and in the trial of all issues ordered to be framed by 
the judge in equity cases in said court, it shall be the duty of the clerk of 
said court to furnish the parties or their attorneys with a list of ten of the 
jurors to be drawn and selected by ballot from the whole number of jurors 
who are in attendance, the names on said lists to be numbered from one to 
ten, from which said list the parties or their attorneys shall alternately 
strike by number, the plaintiff striking first, until there shall be left but 
six names, which shall constitute the jury to try the case or issue: provided, 
that objections for cause shall be allowed and vacancies in the panel filled 
in the manner now provided in the court of common pleas. 

(b) In the selection of a jury for the trial of criminal cases in said county 
court the accused, when charged with a misdemeanor, shall be entitled to 
peremptory challenges not exceeding three, and the State two; and in the 
trial of cases of felony, the accused shall be entitled to peremptory chal- 
lenges not exceeding five, and the State three. In cases where there are 
two or more persons jointly indicted and so tried, the accused shall be 
jointly entitled to six peremptory challenges in cases of misdemeanor, 
and eight peremptory challenges in cases of felony, and no more. A jury 
for the trial of cases in the county court shall consist of six. 

1932 Code. § 147; 1925 (34) 161. 

§ 148. Jurisdiction of county judge. — In all cases and special proceedings 
within the jurisdiction of the county court and pending therein, the 
judge of the county court shall have the same jurisdiction, both in open 
court and at chambers as is possessed by the circuit judges over cases 
pending in the circuit court over which they are presiding, or in the circuits 
in which they are residents: provided, that said county judge shall have 
the power to issue writs of habeas corpus in all cases and to grant bail in all 
cases triable in the county court. The county court shall be open at all 
times, at the convenience of the county judge, for the purpose of taking 
pleas of guilty and imposing sentences in all criminal cases within the 
jurisdiction of this court with the consent of the accused. The county 
judge shall also review summarily and without notice upon oral or written 



§ 148 Code of Civil Procedure Page 72 

application, the amount of bail fixed by the clerk of court or any magistrate 
in the county in any criminal case for the purpose of reducing or increas- 
ing such bail pending trial or appeal; and may call to his aid for such pur- 
pose the circuit solicitor. 
1932 Code, § 148; 1925 (34) 161; 1933 (38) 564. 

§ 149. Appeals to be to Supreme Court. — In all civil actions, criminal cases 
and special proceedings of which said county court shall have jurisdiction, 
the right of appeal shall be to the Supreme Court of the State, and in the 
same manner and pursuant to the same rules, practice and procedure as 
now governs appeals from circuit courts. 
1932 Code, § 149; 1925 (34) 161. 

§ 150. Terms of court. — The county court shall be held on the second 

Mondays of February, March, April, May, July, September and November, 
and at such other times as the judge or court shall order, and continue for 
such time as is necessary to dispose of the business before the court: pro- 
vided, that said court shall always be open for the transaction of all such 
business as can be disposed of without a jury: and provided, further, that 
each week which may be designated for jury trials shall be considered a 
term, and the county judge may designate the time for holding both the 
civil and the criminal terms. 
1932 Code, § 150; 1925 (34) 161. 

§ 151. Jury commissioners — jury lists — panels — venires. — The board 
of jury commissioners as constituted by law in said county for the circuit 
court shall constitute the board of jury commissioners for the said county 
court, and such commissioners shall, annually during the month of Decem- 
ber of each year proceed to prepare a jury list for said county court in 
the manner and under the provisions now relating to the preparation of the 
jury list for the circuit courts, which list may contain the names of any 
person now or hereafter appearing on the jury list prepared for the circuit 
courts, which list may contain the names of any person now or hereafter 
appearing on the jury list prepared for the circuit court of said county; 
the said jury commissioners shall be provided with a strong, substantial 
box, without apertures or openings when closed, to be known as the "Jury 
Box for County Court," which shall be prepared, secured and kept by therr 
in like manner as is now provided to be done in the case of the jury box 
for the circuit courts; they shall place in a special apartment in the said 
jury box (which special apartment shall be known as the "Tales Box") 
the names of not less than three hundred nor more than eight hundred of 
such persons whose names appear on said list as reside within ten miles of 
the court house, from which tales box shall be drawn jurors to supply de- 
ficiencies arising from any cause or emergency during the sitting of the 
court. The names of persons placed in said tales box shall be also placed 
in the said jury box; such commissioners shall, at least ten days before 
the convening of the court, and after five days' notice of such drawing from 
the jury box, which notice may be given either by posting same on the 
court house door or publication in a newspaper published in said county, 
draw a panel of petit jurors, and the clerk of said court shall immediately 
issue to the sheriff a venire containing the names of the persons thus 



Page 73 County Court of Orangeburg § 154 

drawn as petit jurors, which venire shall be returnable at such time as 
may be named, and the persons so served shall be the jurors for said court; 
and the law relating to the qualifications, drawing and summoning jurors 
of the circuit court shall apply, except as herein otherwise provided: pro- 
vided, that not more than eighteen persons shall be drawn and summoned 
to attend at the same time at any session of the county court, unless the 
court shall otherwise order. Jurors drawn and summoned shall appear 
and attend upon the sessions of the county court for which summoned until 
discharged by the judge thereof: provided, that service as jurors in the 
county court shall not be held to exempt a juror from service as such in the 
circuit court in the same year, nor shall service as a juror in the circuit 
court be held to exempt a juror from service as such in the county court 
in the same year, nor shall a juror be required to serve in such county 
court for a full week more than once in the same year. 
1932 Code, § 151; 1925 (34) 161. 

§ 152. Clerk — costs — records — entry of judgments on abstract — indexing. 

— The clerk of the circuit court shall be ex officio clerk of the county court 
and shall keep such calendars, minutes and records of the said county court, 
and the cases therein pending, and attend and perform the duties as the 
clerk thereof, as is required of him by law as clerk of the circuit court. 
The costs and fees of the clerk in civil cases in the county court shall be the 
same as those allowed in similar cases in the court of common pleas. The 
county commissioners of said county shall provide all books necessary for 
keeping records of said court. In all civil cases tried in the county court the 
clerk shall make up and file a judgment roll along with and in the same 
manner as if the judgment had been rendered in the court of common 
pleas; he shall also enter the judgment in the abstracts of judgments of 
the court of common pleas as if such judgment were a judgment of the 
court of common pleas; and he shall also index such judgments in the in- 
dices of judgments of the court of common pleas in the same manner as 
if such judgments were judgments of the court of common pleas for said 
county. 
1932 Code, § 152; 1925 (34) 161; 1935 (39) 254. 

§ 153. Duty of sheriff — fees — bailiffs. — The sheriff of the county, or his 
deputy, shall attend upon all sessions of the said county court, and shall 
be subject to the orders thereof, and shall execute the orders, writs and 
mandates of the said county court as required by law of them in reference 
to the circuit court. The costs and fees of the sheriff in civil and criminal 
cases in the county court shall be the same as those allowed in similar 
cases in the court of common pleas and general sessions. The sheriff shall 
appoint such bailiffs as may be necessary, with the approval of the judge. 
1932 Code, § 153; 1925 (34) 161. 

§ 154. Pay of jurors — of witnesses. — Jurors in attendance upon the ses- 
sions of the county court shall receive as compensation for their services 
the same per diem and mileage as is allowed said jurors in the circuit 
court. Witnesses in attendance upon the said county court shall receive 
the same compensation as witnesses in attendance upon the circuit court. 
1932 Code, § 154; 1925 (34) 161. 



§ 155 Code of Civil Procedure Page 74 

§ 155. Compensation of county judge — special county judges. — The sal- 
ary of the county judge shall be three thousand ($3,000.00) dollars per an- 
num, to be paid monthly by the county, and in addition he shall be allowed 
twenty-five ($25.00) dollars per month for office rent and expenses. In 
case of the absence or inability of the county judge at the time fixed for 
holding the terms of said court or in case of disqualification for trial of any 
case in said court, upon request of the county judge, or a majority of the 
members of the Orangeburg County Bar Association, the Governor may 
appoint some other suitable person, being an attorney at law, to hold said 
term or terms of the county court that may be designated by the Governor, 
or to try any special case, as special county judge, who shall be entitled to 
the same per diem as special circuit judges are now allowed by law. 
1932 Code, § 155; 1925 (34) 161. 

§ 156. Solicitor — duties — inability to serve. — The circuit solicitor shall 
be the solicitor for the said county court, and who shall receive no com- 
pensation therefor except that provided for him as his salary as circuit 
solicitor. In case of sickness, disability or inability of the circuit solicitor 
to serve for any reason at any term, or in any case, the county judge maj 
appoint some attorney to serve in his place. It shall be the duty of the 
circuit solicitor to appear for and represent the State in all criminal cases 
tried in the said county court; he shall prepare and hand out to the grand 
jury all such indictments as may be necessary; he shall also appear for 
and represent the State in all appeals from the said county court; he shall 
also appear for and represent the State in all appeals in criminal cases 
from the magistrate's court in the county court. The said circuit solicitor 
shall also advise with and aid the grand jury of the county in its duties, and 
also the coroner or magistrate in inquisitions. 
1932 Code, § 156; 1925 (34) 161; 1933 (38) 564. 

§ 157. Preparation of criminal cases for county court. — The magistrates of 
Orangeburg County are required to promptly file with the clerk of the court, 
all papers in criminal prosecutions, triable in the county court, and they 
shall make all bonds and recognizance of witnesses and defendants return- 
able to the next ensuing term of said county court. It shall be the duty of 
the clerk of court to notify the circuit solicitor upon the filing of such 
papers and turn same over to him. The said magistrates are required to 
make a list of such witnesses as they deem material on the back of the 
arrest warrant, and while he shall be careful to furnish the names of 
witnesses deemed necessary to establish the charge in the warrant, he 
shall be equally careful not to furnish the names of any witnesses whose 
testimony is immaterial. 
1932 Code, § 157; 1925 (34) 161; 1933 (38) 564. 

§ 158. Grand jury. — The grand jury drawn for and serving in the court of 
general sessions for Orangeburg County shall constitute the grand jury of 
the said county court and shall so serve and act upon all necessary indict- 
ments of the said court, and the said grand jury shall attend upon the ses- 
sions of the said county court, whenever notified so to do by request of the 
circuit solicitor and order of the county judge; the circuit solicitor shall 
appear at the regular terms of the court of general sessions and may hand 



Page 75 County Court of Orangeburg § 161 

out indictments at that time to the grand jury for the county court cases 
and the grand jury shall act upon such indictments as in indictments pre- 
sented for cases in the court of general sessions. The grand jurors shall 
receive as compensation for their services in attendance upon the county 
court the same pay as allowed by law in the court of general sessions. 
1932 Code, § 158; 1925 (34) 161; 1933 (38) 564. 

§ 159. Trial of equity cases. — In actions on the civil side of court in which 
reference to the master may, under the law, now be necessary, said actions 
may be heard and determined by the said county judge, either in term time 
or at chambers, without referring the same, upon testimony taken before 
the said judge; and likewise in all cases where a jury trial may not be 
necessary or required. All sales to be made by the county judge as in cases 
before the court of common pleas. 

1932 Code, § 159; 1925 (34) 161; 1932 (37) 1171. 

See section 3703-7. 

§ 160. Stenographer. — The circuit court stenographer shall be the stenog- 
rapher for the said county court, and he shall attend upon the sessions of 
the said court and perform the duties in connection therewith as he per- 
forms in the circuit court, and who shall receive no compensation therefor 
except that provided for him as his salary as circuit court stenographer. 
The said stenographer shall furnish transcripts of the proceedings upon 
request of the parties litigant and shall be entitled to receive as compen- 
sation therefor a fee of five cents per hundred words for all transcripts so 
furnished, which shall be paid by the litigant requesting the same, except 
in criminal cases where the defendant may satisfy the court that he is 
unable to pay for such transcript, when the same shall be furnished without 
fee by the court stenographer; and the said stenographer shall write out 
for the county judge and the circuit solicitor without charge such records, 
excerpts and transcripts as they may require. 
1932 Code, § 160; 1925 (34) 161; 1933 (38) 564. 

See § 138 and the note thereto. 

§ 161. Transfer of causes. — Any case pending in the court of common 
pleas upon the establishment of the county court for Orangeburg County 
may be transferred to the county court for trial upon motion, after five 
days' notice to the opposite party, to be heard in open court or at chambers, 
if it shall appear that such action may have been brought originally in the 
county court, if then established, and if, in the opinion of the court or cir- 
cuit judge at chambers, it would serve the best interests of all parties con- 
cerned for such case to be transferred for such trial to the county court; 
and likewise any case, within the jurisdiction of the county court, that may 
hereafter be brought in the court of common pleas in the said county may 
be transferred to the county court for trial; and any case brought in the 
county court may be transferred to the court of common pleas for trial 
upon motion of either party, as herein provided for the transfer of cases 
to the county court, by the county judge, if, in the opinion of such county 
judge, it would serve the best interests of all parties concerned for such case 
to be transferred for trial to the court of common pleas. The county judge 



§ 161 Code of Civil Procedure Page 76 

may change the place of trial of any case pending in his court to the circuit 
court in another county in the same manner as provided by law in respect 
to changing place of trial in cases pending in the circuit court. 
1932 Code, § 161; 1925 (34) 161. 

§ 162. Court costs. — All costs and disbursements allowed the prevailing 
party, and all costs and fees allowed officers of the court in actions in the 
court of common pleas, shall be allowed in actions in the county court. 
1932 Code, § 162; 1925 (34) 161. 

§ 163. Quarters for court. — The county highway commission of Orange- 
burg County shall make provisions for holding the sessions of the said 
county court by setting apart suitable quarters in the Orangeburg County 
court house therefor. 
1932 Code, § 163; 1925 (34) 161. 



ARTICLE 5 
County Court of Richland County 

164. Establishment. 174. Clerks. 

165. Jurisdiction. 175. Sheriffs. 

166. Court of record. 176. Witnesses. 

167. Laws applicable. 177. Judge. 

168. Procedure. 178. Bailiffs. 

169. 173, 176. Jury. 179. Stenographer. 

170. Special proceedings. 180. Costs. 

171. Appeal. 181. Quarters. 

172. Sessions 

§ 164. County court for Richland County. — A majority of the qualified 
electors voting at an election held, as provided by law, upon the question 
of the establishment of a county court for the county of Richland, having 
voted in favor thereof, a county court is hereby established in and for said 
county of Richland with such jurisdiction as is hereinafter provided. 
1932 Code, § 164; Civ. P. '22, § 99; 1917 (30) 156. 

See § 101 as effect of certain sections on this article- 

§ 165. Jurisdiction. — The said county court shall have concurrent jurisdic- 
tion with the court of common pleas in all civil cases and special proceed- 
ings, both at law and in equity, where the amount demanded in the com- 
plaint does not exceed three thousand ($3,000.00) dollars, or when the value 
of the property involved does not exceed three thousand ($3,000.00) dollars, 
and in all other civil cases and special proceedings, both at law and in 
equity, in which there is no money demand, or in which the right involved 
cannot be monetarily measured. That the said court shall have concurrent 
jurisdiction with the circuit court to hear and determine all appeals in civil 
cases from judgments rendered by magistrates' courts; and the proceedings 
on such appeal shall be the same as is now provided for appeal from said 
last named courts to the courts of commons pleas and general sessions. 
1932 Code, § 165; Civ. P. '22, § 100; 1917 (30) 156; 1921 (32) 123. 



Page 77 



County Court of Richland 



§ 168 



Cross reference. — As to effect of coun- 
terclaim in excess of jurisdictional 
amount in the civil court of Florence, 
see § 103 and note thereto. As to effect 
of counterclaim in excess of jurisdiction- 
al amount in magistrate courts, see § 
257 and note there placed. See § 101 as to 
effect of certain sections on this article. 

Prayer for relief is not considered part 
of complaint in fixing jurisdictional 
amount. — An action in claim and deliv- 
ery for an automobile, where the com- 
plaint alleged that by reason of the de- 
fendant's fraudulent acts in obtaining 
possession of the car, and by its malici- 
ous detention, the plaintiff had been 
damaged to the extent of $2,500, the 
case was within the jurisdiction of the 
county court as provided for by this sec- 
tion, despite the prayer for judgment 
for possession of the automobile (worth 
$1,250), and for damages in the sum of 
$2,500, the complaint, of which the pray- 
er is no part, and the affidavit, not 
showing the amount claimed was in ex- 
cess of $3,000. Williams v. Workman, 113 
S. C. 487, 101 S. E. 833. 

Cited as to concurrency of the juris- 
diction herein provided for. Strickland 
v. Seaboard Air Line Ry. Co., 112 S. C. 
67, 98 S. E. 853. 

Magistrate's jurisdiction. — §§ 75 thru 



101 reducing magistrate's jurisdiction in 
civil cases to amount not exceeding $25 
is inapplicable to magistrate in Rich- 
land county. Pickens v. Maxwell Bros. 
& Quinn, 176 S. C. 404; 180 S. E. 348. 

No concurrent jurisdiction with mag- 
istrates' courts, but appellate jurisdic- 
tion. Moore v. Moore, 187 S. C. 144; 197 
S. E. 507. 

Under statutes providing for summary 
ejectment of trespassers by magistrate 
and authorizing appeal in such proceed- 
ings, and the statute conferring on 
county court of Richland county concur- 
rent jurisdiction with circuit court to 
hear appeals from magistrate's courts, 
the county court of Richland county 
had no concurrent jurisdiction with 
magistrate's court in summary proceed- 
ing against trespasser and hence was 
without authority to issue rule to show 
cause, or writ in such proceeding, and 
all proceedings thereunder were of no 
force and effect. Ibid. 

And action of defendant in appearing 
and pleading to the petition and de- 
fending action on merits in county court 
did not constitute waiver of question of 
jurisdiction of court, since court had no 
jurisdiction of subject matter of the ac- 
tion. Ibid. 



§ 166. Courts of record — seal — presumption as to validity of judgments 
and decrees. — The said county court shall be a court of record, and have a 
seal inscribed with the words, "County Court of Richland County," and 
the same presumption in favor of its jurisdiction and the validity of its 
judgments and decrees shall hold as in case of judgments rendered by the 
circuit court. 
1932 Code, § 166; Civ. P. '22, § 101; 1917 (30) 156. 

§ 167. General laws to apply — entry of judgment. — All general laws and 
statutory provisions applicable generally to the circuit courts of this State 
and trial of cases therein shall apply to said county courts and to the con- 
duct and trial of cases therein where not inconsistent with this article: 
provided, that any judgment rendered, other than that upon the verdict of 
a jury, may be entered upon the day of such rendition. 
1932 Code, § 167; Civ. P. '22, § 102; 1917 (30) 156; 1918 (30) 748. 



§ 168. Forms of pleading — rules of evidence — filing of pleadings. — The 

same forms of pleadings and the same rules of procedure, practice and evi- 
dence shall obtain in the county court as is provided by law for the trial of 
civil cases in the circuit court, where not inconsistent with the provisions 
of this article: provided, that the pleadings or copies thereof in a case for 
trial before the said court shall be filed in the clerk's office, as now provided 
by law for the circuit court, before six o'clock in the afternoon of the 
Wednesday preceding the first day of the next ensuing term of the said 



§ 168 Code of Civil Procedure Page 78 

county court, and the clerk shall forthwith enter the cases upon the appro- 
priate calendar. 
1932 Code, § 168; Civ. P. '22, § 103; 1917 (30) 156. 

§ 169. Jury trial — waiver. — Where a jury is required by law in the trial 
of all civil cases, in said court, said jury shall consist of six persons. In all 
civil actions either party may demand a jury trial in all cases in which a 
trial by jury is granted of right under the Constitution and laws of this 
State, but such demand must be made on or before the first day of the 
term, or upon the call of the calendar on the first day of the term, and 
the failure to make such demand shall be a waiver of said right of trial by 
jury. 
1932 Code, § 169; Civ. P. '22, § 104; 1917 (30) 156. 

§ 170. Powers in cases and special proceedings — may grant bail and issue 
writs of habeas corpus. — In all cases and special proceedings within the 
jurisdiction of the county court and pending therein the judge of the 
county court shall have the same jurisdiction both in open court and at 
chambers, as is possessed by circuit judges over cases pending in the circuit 
court over which they are presiding, or in the circuits in which they are 
residents: provided, that said county judge shall have the power to issue 
writs of habeas corpus in all cases and to grant bail, except in capital cases. 
1932 Code, § 170; Civ. P. '22, § 105; 1917 (30) 156. 

§ 171. Appeal — procedure. — In all civil actions and special proceedings 
of which said county court shall have jurisdiction, the right of appeal shall 
be to the Supreme Court of the State, in the same manner and pursuant 
to the same rules, practice and procedure as now govern appeals from 
circuit courts. 
1932 Code, § 171; Civ. P. '22, § 106; 1917 (30) 156. 

§ 172. Sessions — open always for certain business. — The county court 
shall be held at the discretion of the county judge at such times as he 
may deem necessary to properly dispatch the business of the court, and 
continue for such time as is necessary to dispose of the business before 
the court: provided, that said court shall always be open for the transac- 
tion of such civil business as can be disposed of without a jury: and provid- 
ed further, that each week which may be designated for jury trials shall 
be considered a term. 
1932 Code, § 172; Civ. P. '22, § 107; 1917 (30) 156; 1918 (30) 748. 

§ 173. Juries. — The board of jury commissioners as constituted by law 
in said county for the drawing of the jurors for the circuit court shall 
constitute the board of jury commissioners for the drawing of jurors to 
attend upon the sessions of the county court, and such commissioners 
shall, upon the order of said court, at such times as shall be fixed, and 
after five days' notice of such drawing, from the jury box (whether the 
same has been previously drawn or not), draw a panel of petit jurors, and 
the clerk of said court shall immediately issue to the sheriff a venire con- 
taining the names of the persons thus drawn as petit jurors, which venire 
shall be returnable at such times as may be named by the said court, 



Page 79 County Court of Richland § 177 

and the persons so served shall be the jurors for said court, and the law 
relating to the qualification, drawing and summoning of jurors of the 
circuit court, shall apply, except as herein otherwise provided: provided, 
that not more than eighteen persons shall be drawn and summoned to 
attend at the same time at any session of the county court, unless the 
court shall otherwise order. Jurors drawn and summoned shall appear 
and attend upon the sessions of the county court for which summoned 
until excused or discharged by the judge thereof: provided, that services 
as jurors in the county court shall not be held to exempt a juror from 
services as such in the circuit court in the same year, nor shall a juror 
be required to serve in such county court more than once in the same 
year: provided, further, that plaintiff and defendant in a cause shall, each, 
be allowed to strike three jurors. 
1932 Code, § 173; Civ. P. '22, § 108; 1917 (30) 156; 1918 (30) 748. 

Waiver of objections to juror. — By selected, right to make objections was 

failure to make objections to juror which waived. Altman v. Efird Bros. Co., 180 

attorney for plaintiff could by due dili- S. E. 205; 185 S. E. 543. 
gence have discovered before jury was 

§ 174. Clerks — duties — compensation. — The clerk of the circuit court shall 
be ex officio clerk of the county court, and shall keep such calendars, min- 
utes and records of the said county court, and the cases therein pending, 
and attend and perform the duties of the clerk thereof, as is required of 
him by law as clerk of the circuit court. The costs and fees of the clerk in 
civil cases in the county court shall be the same as those allowed in similar 
cases in the court of common pleas. The county commissioners of said 
county shall provide all books necessary for keeping records of said court. 
1932 Code, § 174; Civ. P. '22, § 109; 1917 (30) 156; 1918 (30) 748. 

§ 175. Sheriff — duties — compensation.— The sheriff of the county shall 
attend upon all sessions of the said county court, and shall be subject to 
the orders thereof, and shall execute the orders, writs and mandates of 
the said county court as required by law of him in reference to the circuit 
court. That the cost and fees of the sheriff in civil cases in the county court 
shall be the same as those allowed in similar cases in the court of common 
pleas. 

1932 Code, § 175; Civ. P. '22, § 110; 1917 (30) 156. 

§ 176. Compensation of jurors and witnesses.— Jurors in attendance upon 
the sessions of the county court shall receive as compensation for their 
services the same per diem and mileage as is allowed said jurors in the 
circuit court. Witnesses in attendance upon the said county court shall 
receive the same compensation as witnesses in attendance upon the circuit 
court. 
1932 Code, § 176; Civ. P. '22, § 111; 1917 (30) 156. 

§ 177. Judge — term — oath — salary — vacancy — special judge — not 
to practice in certain cases. — It shall be the duty of the Governor to ap- 
point a resident attorney at law of Richland County as county judge, who 
shall receive the largest number of votes at the time of the submission of 
this article to the people for its approval, and who shall hold offce until the 
next general election and until his successor shall be appointed and quali- 



§ 177 Code of Civil Procedure Page 80 

fied and who shall be the presiding judge of said county court. The 
said judge of said court shall possess all the powers in respect to preserv- 
ing order or punishing for contempt of court as now possessed by circuit 
judges. The term of office for the county judge shall be four years from 
the date of the expiration of his predecessor's term. At the next general 
election, and at every alternate election thereafter, an election shall be 
had for county judge, whose term of office shall be four years from date 
of expiration of his predecessor's term of office, or until his successor 
has been elected and qualified. The said county judge before entering 
upon the duties of his office, shall take the same oath of office as required 
by law of all circuit judges, and shall be commissioned in the same man- 
ner as circuit judges. The salary of the county judge shall be five thou- 
sand five hundred ($5,500.00) dollars per annum, to be paid by the county 
in monthly installments. Said judge shall not charge on the facts, but 
shall declare the law only. All vacancies in the office of county judge 
shall be filled by appointment by the Governor, such appointments hold- 
ing for the unexpired terms of his predecessor. In case of absence or in- 
ability of the county judge, at the time fixed for holding any term of 
said court, the Governor may appoint some other suitable person (being 
an attorney at law) to hold said term of court as special county judge. 
The county judge, as provided for in this section, shall not be allowed to 
practice law in the courts of this State. 

1932 Code, § 177; Civ. P. '22, § 112; 1917 (30) 156; 1918 (30) 748; 1920 (31) 743; 1921 
(32) 123; 1926 (34) 1042; 1929 (36) 135. 

§ 178. Bailiffs — compensation. — The said judge of the county court may 
appoint a sufficient number of bailiffs, not to exceed two, to attend upon 
the said court, and be subject to the orders thereof; and the said bailiffs 
shall have the same power as constables of said county, and one of said 
bailiffs shall receive as compensation three ($3.00) dollars per day for 
the time actually engaged, and shall not be retained in attendance upon 
the court longer than the exigencies of the court may require, and the 
other bailiff shall attend upon the court daily and receive as compensation 
the sum of twelve hundred ($1,200.00) dollars per annum, to be paid by the 
county in monthly installments, reckoning from January 1, 1920. 
1932 Code, § 178; Civ. P. '22, § 113; 1917 (30) 156; 1918 (30) 748; 1919 (31) 147; 

1920 (31) 943. 

§ 179. Stenographer. — The said county judge shall appoint for the said 
county court an official stenographer, who shall attend upon the sessions 
of said court and perform the duties in connection therewith as performed 
by the circuit stenographer in the circuit court. The said stenographer 
shall receive from the county the salary of two thousand dollars ($2,000.00) 
per annum reckoning from January 1, 1921, to be paid by the county in 
monthly installments, and, in addition, such fee as provided herein: pro- 
vided, that no stenographer of the county court shall appear as counsel in 
said court. 

1932 Code, § 179; Civ. P. '22, § 114; 1917 (30) 156; 1918 (30) 748; 1919 (31) 235; 

1921 (32) 123. 

§ 180. Costs and disbursements. — All costs and disbursements allowed 
the prevailing party, and all costs and fee allowed officers of court in 



Page 81 



County Court of Spartanburg 



§ 183 



actions in the court of common pleas, shall be allowed in actions in this 
court. 
1932 Code, § 180; Civ. P. '22, § 115; 1917 (30) 156. 

§ 181. Court room — code and acts to be furnished. — The county com- 
missioners of Richland County shall make provisions by setting apart 
suitable quarters in the court house for holding the sessions of said county 
court, and shall provide the said court with the volumes of the Code of 
Laws of South Carolina, as at present published and as may hereafter be 
published, together with the public acts of the General Assembly for each 
year as they are issued, beginning with 1912. 

1932 Code, § 181; Civ. P. '22, § 116; 1917 (30) 156; 1918 (30) 748. 







ARTICLE 6 




County Court of Spartanburg County 


182. 


Establisment. 


194. Sheriff and bailiffs. 


183. 


Judge and solicitor. 


195. Jurors and witnesses 


184. 


Jurisdiction. 


196. Judge's salary. 


185. 


Court of record. 


197. Solicitor. 


186. 


Rules and regulations. 


198. Criminal cases. 


187. 


Procedure. 


199. Grand jury. 


188. 


Jury. 


200. Trial by the court. 


189. 


Powers of judge. 


201. Stenographer. 


190. 


Appeals. 


202. Transfer of cause. 


191. 


Terms. 


203. Cost. 


192. 


Jury commissioners. 


204. Quarters. 


193. 


Clerk. 





§ 182. County court established in Spartanburg County. — A county court 
hereby is forthwith established in and for the county of Spartanburg, with 
such jurisdiction, powers and limitations as may be hereinafter provided. 
1932 Code, § 182; 1930 (36) 1117. 

§ 183. Judge and solicitor. 

(a) Judge — appointment — term — vacancy. — The Governor shall appoint 
a county judge upon the recommendation of a majority of the members 
of the Spartanburg County legislative delegation in the General Assembly 
at a meeting to be held by the said Spartanburg County legislative delega- 
tion, of which five days' notice shall be given by mail to the members 
thereof by its chairman. The county judge shall be a resident practicing 
attorney of the Spartanburg County bar, and shall qualify and take the 
oath of office provided for circuit judge. That the term of office of the coun- 
ty judge shall be four years from the date of his qualification, and he 
shall serve until his successor is likewise appointed and shall have quali- 
fied. In case of a vacancy in such office, the Governor shall appoint his 
successor for the unexpired term in like manner upon the recommenda- 
tion of the Spartanburg County legislative delegation. 

(b) Solicitor — term — election — vacancy. — There shall be appointed by the 
Governor, upon the recommendation of the Spartanburg County legisla- 
tive delegation in the General Assembly, a county solicitor, who shall 



§ 183 Code of Civil Procedure Page 82 

qualify and be commissioned by the Governor as in the case of circuit 
solicitors. The county solicitor so appointed shall serve until the next 
ensuing general election, at which his successor shall be elected for a 
term of four years, and at every alternate general election thereafter 
there shall be an election for county solicitor for a term of four years, who 
shall serve until his successor has been elected or appointed and shall 
have qualified. In case of a vacancy in the office of county solicitor the 
same shall be filled by appointment by the Governor upon the recom- 
mendation of a majority of the members of the Spartanburg County legis- 
lative delegation by ballot, such appointee to hold until the next ensuing 
general election thereafter, at which time there shall be elected a county 
solicitor for the unexpired term only. 
1932 Code, § 183; 1930 (36) 1117. 

§ 184. Jurisdiction. — (a) The said county court shall have concurrent 
jurisdiction with the court of common pleas in all civil cases and special 
proceedings, both at law and in equity, in which the amount demanded 
in the complaint does not exceed three thousand ($3,000.00) dollars, or in 
which the value of the property involved does not exceed three thousand 
($3,000.00) dollars; and in all other civil cases and special proceedings, both 
at law and in equity, and in which there is no money demanded, or in which 
the right involved cannot be measured or fixed by any monetary value. 

(b) The said county court shall have concurrent jurisdiction with the 
court of general sessions in all criminal cases, except murder, manslaugh- 
ter, rape, or attempt to rape, arson, common law burglary, bribery, per- 
jury and forgery, and concurrent jurisdiction with the magistrate courts 
in all criminal cases within the jurisdiction of magistrate courts. 

(c) The said county court shall have concurrent jurisdiction with the 
court of common pleas and the court of general sessions, respectively, to 
hear and determine all appeals in civil cases and criminal cases, respec- 
tively, from judgments rendered by the magistrate courts, and all other 
inferior courts; and the proceedings on such appeals shall be the same as 
now provided for appeals in such cases from the magistrate courts to the 
court of common pleas and the court of general sessions, respectively. 

1932 Code, § 184; 1930 (36) 1117. 

§ 185. Court of record. — The said county court shall be a court of record 
and have a seal inscribed with the words: "County Court of Spartanburg 
County"; and the same presumption in favor of its jurisdiction and the 
validity of its judgments and decrees shall hold as in the case of jurisdic- 
tion, judgments and decrees of the circuit courts. 
1932 Code, § 185; 1930 (36) 1117. 

§ 186. Rules and regulations. — The general laws and statutory provisions, 
and rules of court, applicable generally to the circuit court of this State, 
and the trials of cases therein, shall apply to said county court and to the 
conduct and trial of cases therein where not inconsistent with this article: 
provided, that any judgment rendered may be entered upon the third day 
after such rendition, or upon the same day with leave of the court: and 
provided, that in all criminal cases wherein the punishment does not ex- 
ceed a fine of one hundred dollars or imprisonment for thirty days, the 



Page 83 County Court of Spartanburg § 189 

same shall be tried, without presentment by a grand jury, on information 
or indictment filed by the county solicitor. 
1932 Code, § 186; 1930 (36) 1117. 

§ 187. Pleadings — procedure — practice — evidence. — The same form of 
pleadings and the same rules of procedure, practice and evidence shall ob- 
tain in the county court as is provided by law for the trial of civil and 
criminal cases in the circuit court where not inconsistent with the provis- 
ions of this article: provided, that the pleadings or copies thereof in a case 
for trial before the said county court shall be filed in the office of the clerk 
of court, as now provided by law in the circuit court, before noon of the 
Monday preceding the first day of the next ensuing term of the said county 
court, and the clerk shall forthwith enter the cases upon the appropriate 
calendar. 
1932 Code, § 187; 1930 (36) 1117. 

§ 188. Juries — civil — criminal — number. — (a) In the trial of all civil actions 
at law in the said county court, and in the trial of all issues ordered to 
be framed by the judge in equity cases in said court, it shall be the duty 
of the clerk of the said court to furnish the parties or their attorneys with 
a list of ten of the jurors to be drawn and selected by ballot from the 
whole number of jurors who are in attendance, the names on said lists 
to be numbered from one to ten, from which said list the parties or their 
attorneys shall alternately strike by number, the plaintiff striking first, 
until there shall be left but six names, which shall constitute the jury to 
try the case or issue: provided, that objections for cause shall be allowed 
and vacancies in the panel filled in the manner now provided in the court 
of common pleas. 

(b) In the selection of a jury for the trial of criminal cases in said county 
court the accused, when charged with a misdemeanor, shall be entitled 
to peremptory challenges as is now provided by law for trial of similar 
cases in the court of general sessions; and in the trial of cases of felony, 
the accused shall be entitled to peremptory challenges as is now provided 
by law for the trial of similar cases in the court of general sessions, and 
the State the same number as now provided by law in the court of general 
sessions. A jury for the trial of cases in the county court shall consist of 
six. 

1932 Code, § 188; 1930 (36) 1117. 

§ 189. Power of judge — open court. — In all cases and special proceedings 
within the jurisdiction of the county court and pending therein, the judge 
of the county court shall have the same jurisdiction, both in open courl 
and at chambers, as is possessed by the circuit judges over cases pending 
in the circuit courts over which they are presiding, or in the circuits in 
which they are residents: provided, that said county judge shall have the 
power to issue writ of habeas corpus in all cases and to grant bail in all 
cases triable in the county court. The county court shall be open at all 
times, at the convenience of the county judge, for the purpose of taking 
pleas of guilty and imposing sentences in all criminal cases within the 
jurisdiction of this court with the consent of the accused. The county 
judge shall also review summarily and without notice upon oral or written 



§ 189 Code of Civil Procedure Page 84 

application, the amount of bail fixed by the clerk of court or any magis- 
trate in the county in any criminal case for the purpose of reducing or in- 
creasing such bail pending trial or appeal; and may call to his aid for such 
purpose the county solicitor. 
1932 Code, § 189; 1930 (36) 1117. 

§ 190. Appeals. — In all civil actions, criminal cases and special proceed- 
ings of which said county court shall have jurisdiction, the right of appeal 
shall be to the Supreme Court of the State, and in the same manner and 
pursuant to the same rules, practice and procedure as now governs ap- 
peals from circuit courts. 

1932 Code, § 190; 1930 (36) 1117. 

§ 191. Xerms. — The county court shall be held on the second Mondays 
of February, March, April, May, July, September and November, and at 
such other times as the judge or court shall order, and continue for such 
time as is necessary to dispose of the business before the court: provided, 
that said court shall always be open for the transaction of all such busi- 
ness as can be disposed of without a jury: and provided, further, that each 
week may be designated for jury trials shall be considered a term, and the 
county judge may designate the time for holding both the civil and crim- 
inal terms: provided, further, that whenever the time designated by the 
county judge for the holding of civil or criminal terms shall be insufficient 
for the trial of all cases before the court, said term may be continued into 
the following week and jurors may be held over into the following week. 
1932 Code, § 191; 1930 (36) 1117; 1932 (37) 1194. 

§ 192. Jury commissioners — duties — jurors — tales box. — The board of 
jury commissioners as constituted by law in said county for the circuit 
court shall constitute the board of jury commissioners for the said county 
court, and such commissioners shall, immediately upon the establishment 
of the said county court, and annually thereafter during the month of 
December of each year, proceed to prepare a jury list for said county court 
in the manner and under the provisions now relating to the preparation 
of the jury list for the circuit court, which list may contain the names of 
any person now or hereafter appearing on the jury list prepared for the 
circuit court of said county; that the said jury commissioners shall be 
provided with a strong, substantial box, without apertures or openings 
when closed, to be known as the "Jury Box for County Court," which 
shall be prepared, secured and kept by them in like manner as is now 
provided to be done in the case of the jury box for the circuit courts; that 
they shall place in a special apartment in the said jury box (which special 
apartment shall be known as the "Tales Box") the names of not less than 
three hundred nor more than eight hundred of such persons whose names 
appear on said list as reside within ten miles of the court house, from 
which tales box shall be drawn jurors to supply deficiencies arising from 
any cause or emergency during the sitting of the court. The names of 
persons placed in said tales box shall be also placed in the said jury box; 
that such commissioners shall, at least ten days before the convening of the 
court, and after five days' notice of such drawing from the jury box, which 
notice may be given eitner by posting same on the court house door or 



Page 85 County Court of Spartanburg § 194 

publication in a newspaper published in said county, draw a panel of petit 
jurors, and the clerk of said court shall immediately issue to the sheriff 
a venire containing the names of the persons thus drawn as petit jurors, 
which venire shall be returnable at such times as may be named, and the 
persons so served shall be the jurors for said court; and the law relating 
to the qualifications, drawing and summoning jurors of the circuit court 
shall apply, except as herein otherwise provided: provided, that not more 
than eighteen persons shall be drawn and summoned to attend at the 
same time at any session of the county court, unless the court shall other- 
wise order. Jurors drawn and summoned shall appear and attend upon 
the sessions of the county court for which summoned until discharged by 
the judge thereof: provided, that service as jurors in the county court shall 
not be held to exempt a juror from service as such in the circuit court in 
the same year, nor shall service as a juror in the circuit court be held to 
exempt a juror from service as such in the county court in the same year, 
nor shall a juror be required to serve in such county court for a full week 
more than once in the same year, provided, when the business of the court 
is not completed during the week for which jurors are drawn, said jurors 
may be held for service during the following week, but such jurors may 
be excused from service during the second week for any good cause ap- 
pearing to the court, and if so excused, shall not be required to report for 
duty at the next term of court, and vacancies caused by excusing jurors 
from service during the second week shall be filled from the tales box. 
1932 Code, § 192; 1930 (36) 1117; 1932 (37) 1194. 

§ 193. Clerk of court — duties — fees — judgments. — The clerk of the circuit 
court shall be ex-ofncio clerk of the county court and shall keep such cal- 
endars, minutes and records of the -said county court, and the cases therein 
pending and attend and perform the duties as the clerk thereof, as is re- 
quired of him by law as clerk of the circuit court. The costs and fees of 
the clerk in civil cases in the county court shall be the same as those al- 
lowed in similar cases in the court of common pleas. The county commis- 
sioners of said county shall provide all books necessary for keeping records 
of said court. In all civil cases tried in the county court the clerk shall 
make up and file a judgment roll along with and in the same manner as 
if the judgment had been rendered in the court of common pleas; he shall 
also enter the judgment in the abstracts of judgments of the court of com- 
mon pleas as if such judgment were a judgment of the court of common 
pleas; and he shall also index such judgments in the indices of judgment 
of the court of common pleas in the same manner as if such judgments 
were judgments of the court of common pleas for said county. 
1932 Code, § 193; 1930 (36) 1117; 1932 (37) 1128. 

§ 194. Sheriff — duties — bailiffs. — The sheriff of the county, or his de- 
puty, shall attend upon all sessions of the said county court, and shall be 
subject to the orders thereof, and shall execute the orders, writs and man- 
dates of the said county court as required by law of them in reference to 
the circuit court. That the costs and fees of the sheriff in civil and criminal 
cases in the county court shall be the same as those allowed in similar 
cases in the court of common pleas and general sessions. The sheriff shall 



§ 194 Code of Civil Procedure Page 86 

appoint such bailiffs as may be necessary, with the approval of the judge. 
1932 Code, § 194; 1930 (36) 1117. 

§ 195. Jurors — witnesses — compensation. — Jurors in attendance upon the 
sessions of the county court shall receive as compensation for their services 
the same per diem and mileage as is allowed said jurors in the circuit court. 
Witnesses in attendance upon the said county court shall receive the same 
compensation as witnesses in attendance upon the circuit court. 
1932 Code, § 195; 1930 (36) 1117. 

§ 196. Judge's salary — special judges — how appointed. — The salary of the 
county judge shall be three thousand ($3,000.00) dollars per annum, to be 
paid monthly by the county. In case of the absence or inability of the 
county judge at the time fixed for holding the terms of said court or in 
case of disqualification for trial of any case in said court, upon request of 
the county judge, or a majority of the members of the Spartanburg County 
Bar Association, the Governor may appoint some other suitable person, 
being an attorney at law, to hold said term or terms of the county court 
that may be designated by the Governor, or to try any special case, as 
special county judge, who shall be entitled to the same per diem as special 
circuit judges are now allowed by law. 
1932 Code, § 196; 1930 (36) 1117. 

§ 197. Solicitor's salary — special solicitors — duties. — The county solicitor 
shall receive a salary of fifteen hundred ($1,500.00) dollars per annum, 
payable in monthly installments by the county. In case of sickness, disa- 
bility or inability of the county solicitor to serve for any reason at any 
term, or in any case, the county judge may call upon the circuit solicitor, 
or appoint some other attorney to serve in his place. It shall be the duty 
of the county solicitor to appear for and represent the State in all criminal 
cases tried in the said county court; he shall prepare and hand out to the 
grand jury all such indictments as may be necessary; he shall appear for 
and represent the State in all appeals from the said county court, and may 
call upon the circuit solicitor for such assistance as may be necessary; 
he shall also appear for and represent the State in all appeals in criminal 
cases from the magistrate's court in the county court. The said county 
solicitor shall also advise with and aid the grand jury of the county in its 
duties, and also the coroner or magistrates in inquisitions. The said county 
solicitor shall not practice law in criminal cases in the magistrate's court 
of Spartanburg County, nor shall he appear for the defense in any criminal 
cases in the court of general sessions for said county. 
1932 Code, § 197; 1930 (36) 1117. 

As to right of solicitor to nolle prose-qui, see annotation § 97. 

§ 198. Duties of magistrates — clerk of court. — The magistrates of Spar- 
tanburg County are required to promptly file with the clerk of court all 
papers in criminal prosecutions, triable in the county court, and they shall 
make all bonds and recognizance of witnesses and defendants returnable 
to next ensuing term of said county court. It shall be the duty of the clerk 
of the court to notify the county solicitor upon the filing of such papers 
and turn same over to him. The said magistrates are required to make a 



Page 87 County Court of Spartanburg § 202 

list of such witnesses as they deem material on the back of the arrest 
warrant, and while he shall be careful to furnish the names of witnesses 
deemed necessary to establish the charge in the warrant, he shall be 
equally careful not to furnish the names of any witnesses whose testimony 
is immaterial. 
1932 Code, § 198; 1930 (36) 1117. 

§ 199. Grand jury. — The grand jury drawn for and serving in the court 
of general sessions of Spartanburg County shall constitute the grand 
jury of the said county court and shall so serve and act upon all necessary 
indictments of the said court, and the said grand jury shall attend upon 
the sessions of the said county court, whenever notified so to do by request 
of the county solicitor and order of the county judge; the county solicitor 
shall appear at the regular terms of the court of general sessions and may 
hand out indictments at that time to the grand jury for the county court 
cases, and the grand jury shall act upon such indictments as in indict- 
ments presented for cases in the court of general sessions. The grand 
jurors shall receive as compensation for their services in attendance upon 
the county court the same pay as allowed by law in the court of general 
sessions. 
1932 Code, § 199; 1930 (36) 1117. 

§ 200. Certain civil causes may be heard by judge. — In actions on the 
civil side of court in which reference to the master may, under the law, 
now be necessary, said actions may be heard and determined by the said 
county judge, either in term time or at chambers, without referring the 
same to the said master, upon testimony taken before the said judge; and 
likewise in all cases where a jury trial may not be necessary or required. 
All sales to be made by the master, as in cases before the court of com- 
mon pleas. 
1932 Code, § 200; 1930 (36) 1117. 

§ 201. Stenographer — salary — duties. — The said county judge shall appoint 
for said county court an official stenographer, to serve at his pleasure, who 
shall attend upon the sessions of the said court and perform the same 
duties in connection therewith as are performed by the stenographers in 
the circuit court. That the said stenographer shall receive for such services 
a salary of nine hundred ($900.00) dollars per annum, payable monthly by 
the county, and the said stenographer shall furnish transcripts of the pro- 
ceedings upon request of the parties litigant, and shall be entitled to receive 
as compensation therefor a fee of five cents per hundred words for all 
transcripts so furnished, which shall be paid by the litigant requesting 
the same, except in criminal cases where the defendant may satisfy the 
court that he is unable to pay for such transcript, when the same shall be 
furnished without fee by the court stenographer; and the said steno- 
grapher shall write out for the county judge and the county solicitor with- 
out charge such records, excerpts and transcripts as they may require. 
1932 Code, § 201; 1930 (36) 1117. 

§202. Transfer cases to county court from common pleas — vice versa — 
change of venue. — Any case pending in the court of common pleas upon 



§ 202 Code of Civil Procedure Page 88 

the establishment of the county court for Spartanburg County may be trans- 
ferred to the county court for trial upon motion, after five days' notice to the 
opposite party, to be heard in open court or at chambers, if it shall appear 
that such action may have been brought originally in the county court, if 
then established, and if, in the opinion of the court or circuit judge at 
chambers, it would serve the best interests of all parties concerned for such 
case to be transferred for such trial to the county court; and likewise any 
case, within the jurisdiction of the county court, that may be hereafter 
brought in the court of common pleas in the said county may be trans- 
ferred to the county court for trial; and any case brought in the county 
court may be transferred to the court of common pleas for trial upon 
motion of either party, as herein provided for the transfer of cases to the 
county court, by the county judge, if in the opinion of such county judge, 
it would serve the best interests of all parties concerned for such case to 
be transferred for trial to the court of common pleas. The county judge 
may change the place of trial of any case pending in his court to the cir- 
cuit court in another county in the same manner as provided by law in 
respect to changing place of trial in cases pending in the circuit court. 
1932 Code, § 202; 1930 (36) 1117. 

§ 203. Costs. — All costs and disbursements allowed the prevailing party, 
and all costs and fees allowed officers of the court in actions in the court of 
common pleas, shall be allowed in actions in the county court. 
1932 Code, § 203; 1930 (36) 1117. 

§ 204. Location. — The county board of control for Spartanburg County 
shall make provisions for holding the sessions of the said county court by 
setting apart suitable quarters in the Spartanburg County court house 

therefor. 
1932 Code, § 204; 1930 (36) 1117. 



CHAPTER 4 

Probate Court 

205. Sessions. 224. Times and places for holding courts. 

206! Court of record. 225. When open. 

207 Clerk. 226. Adjournment. 

20a Jurisdiction. 227. Papers filed with auditor. 

209. Guardians. 228 thru 236, 251. Appeals. 

210, 211. County in which proceedings 237. Manner of commencing proceedings 

instituted 238. Rules by supreme court. 

212. Small estates. 239. Contempt. 

213. Final discharge. 24 °- Enrollment of decrees. 

214. Guardianship. 241. Index of decrees. 

215. Disqualification of judge. 242. Executions. 

216. Oath. 243 > 245 thru 249. Minors. 
217! Warrants and processes. 244 - Witnesses. 

218. Contumacy. 250. Violation of court order. 

219'. Depositions. 251. Appeals. 

220. Exclusive jurisdiction. 252 - Fees - 

221. No collateral impeachment. 253, 254. Orphanage. 

222. When minor may choose guardian. 255. Juvenile courts in certain counties. 

223. Authorized to permit sale and set- 256. Children's court for Greenville. 

tie accounts of guardian. County. 



Page 89 Probate Court § 207 

§ 205. Sessions. — A court of probate is hereby established in each of the 
several counties in this State, which shall hold a session on the first Mon- 
day in each month, at or near the court house, and continue thereafter so 
long as the business may require. 

1932 Code, § 205; Civ. P. '22, § 163; Civ. P. '12, § 39; Civ. P. '02, § 34; 1868 (14) 
76; 1869 (14) 241; 1870 (14) § 35. 

§ 206. Court of record — clerk. — The court of probate shall be a court of 
record, and have a seal; may appoint a clerk, and may remove him at 
pleasure; and on failure of the court to appoint such clerk, the judge of the 
court shall perform all the duties of clerk: provided, that no person holding 
the office of clerk of the probate court under and by virtue of the appoint- 
ment of the probate judge of any county of this State, shall practice in 
such court as an attorney or counsellor at law: provided, that in Anderson, 
Richland, Spartanburg, Horry and Barnwell Counties, when so qualified, 
by appointment by the probate judge for said counties, the clerk may do 
and perform any and all of the duties appertaining to the office of his 
principal. The said probate judge for said counties may take such bond 
and security from his clerk as he shall deem necessary to secure the faith- 
ful discharge of the duties of the appointment, but shall in all cases be 
answerable for the neglect of duty or misconduct in office of his clerk. 

1932 Code, § 206; Civ. P. '22, § 164; Civ. P. '12, § 40; Civ. P. '02, § 35; 1870 (14) 36; 
1877 (16) 233; 1918 (30) 833; 1927 (35) 103, 251; 1929 (36) 78; 1932 (37) 1261. 

Probate court is not an inferior court, tack, see the catchline, "and are not 

— The court of probate, though of limit- subject to collateral attack except for 

ed jurisdiction, is a court of record with fraud" in note to § 208, post, in which 

large powers, and, as to proceedings the case of Tederall v. Bouknight, 25 S. 

within its jurisdiction, cannot be said to C. 275 is discussed. 

be in the ordinary sense of the term, an As to proper venue for removal of an 

inferior court. Burnett v. Burnside, 33 executor, see the catchline, "proceeding 

S. C. 276, 11 S. E. 787. See, also, Thorn- for removal of executor should be in- 

as v. Poole, 19 S. C. 323; Turner v. Ma- stituted in county of probate" in note to 

lone, 24, S. C. 398. § 211, in which the case of Smith v. Hey- 

And its functions are judicial in na- ward, 107 S. C. 542, 93 S. E. 195 is dis- 

ture. — The functions of the court are ju- cussed. 

dicial, and not merely ministerial, rest- Extent of liability of clerk's bond. — 
ing on the discretion of the judge, not Act of clerk of probate court in appoint- 
only in making an order of sale of pro- ing himself guardian of estate was not 
perty to pay debts of decedent, but ex- within purview of his duties and is not 
ecuting title. Burnett v. Burnside, 33 covered by his surety bond. Brooks v. U. 
S. C. 276, 11 S. E. 787. S. F. & G. Co., 161 S. C, 66; 159 S. E. 

So that appeal, not mandamus, is the 488. 

remedy for error. — Appeal is the only Bond from clerk to judge of probate 

remedy to circuit court when probate was given for judge's protection. The 

court commits error and mandamus will public must look for its protection to 

not lie to force a probate judge to exe- bond of judge of probate. Ibid, 

cute title to property within his juris- Court of record. — The probate court is 

diction. Burnett v. Burnside, 33 S. C. a court of record, and its orders, decrees, 

276, 11 S. E. 787, 788. etc., should be in writing and properly 

See generally. — As to facts appearing entered of record. Ellis Estate v. Brown 

on the record of clerk of the probate et al., 162 S. C. 136, 160 S. E. 260. 
court not being subject to collateral at- 

§ 207. Duties of clerk. — The clerk of the court of probate shall keep a true 
and fair record of each order, sentence, and decree of the court, and of all 
other things proper to be recorded; and on the legal fees being paid, shall 
give true and attested copies of the files and proceedings of the court. 
All copies so attested shall be legal evidence in the courts of this state. 
1932 Code, § 207; Civ. P. '22, § 165; Civ. P. '12, § 41; Civ. P. '02, § 36; 1870 (14) 37. 



§ 207 



Code of Civil Procedure 



Page 90 



Right to copies of record contingent 
upon payment of fees. — The payment of 
of the fees as set out in this section is a 
prerequisite to the right to obtain a cer- 
tified copy of the probate record and the 
failure of the probate judge to issue a 
certified copy on administratrix's de- 
mand without tender of the fees was not 
indifference of the court. Boggs-Tate 



Co. v. Bishop, 149 S. C. 69, 146 S. E. 677. 
And mandamus will lie to enforce 
that right. — Upon payment of fees the 
right to a certified copy of the probate 
record vests, and mandamus will lie to 
compel the court to give "true and at- 
tested copies of the files and proceed- 
ings of that court." Boggs-Tate Co. v. 
Bishop 149 S. C. 69, 146, S. E. 677, 679. 



§ 208. Jurisdiction of judges. — Every judge of probate, in his county, shall 
have jurisdiction in all matters testamentary and of administration, in 
business appertaining to minors, and the allotment of dower, in cases of 
idiocy and lunacy, and of persons non compos mentis. 

1932 Code, (14) § 208; Civ. P. '22, § 166; Civ. P. '12, § 42; Civ. P. '02, § 37; 1870 (14) 
§ 38. 



See the section immediately following 
and the note there placed. 

Extent of court's jurisdiction is not 
clearly defined. — The extent of the ju- 
risdiction of a probate judge over "mat- 
ters testamentary and of administra- 
tion," and "in business appertaining to 
minors" as conferred by the constitution 
has not yet been determined. Thomas v. 
Poole, 19 S. C. 323. 

As to jurisdiction of probate court be- 
ing limited to period of infancy of ward, 
in matter relating to guardians of mi- 
nors, etc., see Waller v. Cresswell, 4 S. 
C. 353, treated under the section immed- 
iately following, catchline "Which Juris- 
diction Possibly Exists Only During In- 
fancy of Ward." 

But it extends to claims against the 
estate of a deceased person. — A probate 
court undoubtedly has jurisdiction to 
ascertain claims against the estate of a 
deceased person. See Gaston v. Gaston, 
80 S. C. 157, 61 S. E. 393; Dyson v. Jones, 
65 S. C. 308, 43 S. E. 667. 

The probate court has power to ren- 
der judgment on contract in favor of a 
creditor against decedent's estate when 
it becomes proper to determine what 
debts exist against a decedent's estate in 
a proceeding to sell land in aid of assets 
to pay the debts of the estate and to 
marshal and administer such assets. Dy- 
son v. Jones, 65 S. C. 308, 43 S. E. 667, 
671. 

As to court's jurisdiction to sell real 
estate in aid of assets, and its power to 
marshal assets of decedent, see § 211 and 
the note thereto. 

And it may appoint an administrator 
de bonis non where vacancy occurs. — 
Under this and the five following sec- 
tions as well as the State Constitution, 
Art. 5, § 19, §§ 8968, 9015, 9027, a pro- 
bate court has power to appoint an ad- 
ministrator de bonis non, if otherwise 
proper, whenever a vacancy occurs in 
the official representation of a deced- 
ent's estate. McNair v. Howie, 123 S. C. 



252, 116 S. E. 279, 285. 

Even after it has discharged the gen- 
eral administrator. — See this catchline 
under § 213, where is treated the case of 
McNair v. Howie, supra. 

And the court may appoint a guardian 
ad litem for an infant defendant. — 
Whenever a minor is made a party to a 
cause in the court of common pleas, the 
probate court has the power to appoint 
a guardian ad litem for the minor. Tra- 
pier v. Waldo, 16 S. C. 289. 

In probate of wills the jurisdiction ex- 
tends only to its execution and not to its 
construction. Prater v. Whittle, 16 S. 
C. 40. 

Letters testamentary cannot be grant- 
ed to one as executor not nominated by 
the will. Blakely & Copeland v. Frazier, 
20 S. C. 144. 

What are not cases of "matters testa- 
mentary or of administration." Caldwell 
v. Little, 15 S. C. 236. 

It has jurisdiction over dower. — The 
probate court has jurisdiction over cases 
involving disputes as to the right of 
dower and the titles of land. See Tibbett 
v. Langley Man. Co., 12 S. C. 465. 

Though questions of fact be involved. 
— The probate court has jurisdiction of 
actions dealing with "the allotment of 
dower" even though questions of fact 
are involved. Stewart v. Blease, 4 S. C. 
44. 

It may settle an estate upon petition of 
executors. — A probate court has juris- 
diction to settle an estate upon petition 
of the executors as being a matter testa- 
mentary. In re Covin's Est., 20 S. C. 476. 

Personal action against an administra- 
tor is not within court's jurisdiction. — 
The probate court has no jurisdiction of 
an action against an administrator in 
his personal character for a wrong done 
in the course of his administration. Rob- 
erts v. Johns, 10 S. C. 101. 

A probate court has no jurisdiction 
over an action by a cestui que trust 
against his trustee for an accounting, un- 



Page 91 



Probate Court 



§ 209 



less it involves matters testamentary. 
Poole v. Brown, 12 S. C. 556. 

A probate court has no jurisdiction 
over an action by one legatee against an- 
other to recover money paid to her in 
excess of her share as it was found to be 
by the probate court. Miller v. Stark, 29 
S. C. 325, 7 S. E. 501, 503. 

Court's jurisdiction concurrent with 
that of court of common pleas unless 
matter is res judicata. — The probate 
court has no such exclusive jurisdiction 
as will preclude a judicial inquiry by the 
court of common pleas into matters tes- 
tamentary and of administration when 
the subject matter of such inquiry is not 
already res judicata by virtue of a judg- 
ment of the probate court. Beatty v. 
National Surety Co., 132 S. C. 45, 128 
S. E. 40, 43. 

But the principle of comity will be re- 
spected. — If, however, at the time of the 
commencement of an action in the court 
of common pleas there is an action or 
proceeding pending in the court of pro- 
bate which properly embraces the sub- 
ject-matter of the inquiry sought to be 
conducted in the court of common pleas, 
then under the principle of comity the 
court of common pleas will decline to 
entertain jurisdiction of such inquiry. 
Beatty v. National Surety Co., 132 S. C. 
45, 128 S. E. 40, 43, citing Epperson v. 
Jackson, 83 S. C. 157, 65 S. E. 217. 

As to exclusiveness of jurisdiction 
once acquired, see § 220 and the note 
thereto. 

And this concurrent jurisdiction is il- 
lustrated in the allotment of dower. — A 
probate court does not have exclusive 
jurisdiction in "the allotment of dower" 
but its jurisdiction is concurrent with 
that of the court of common pleas in 
such matters. Witte Bros v. Clarke, 17 
S. C. 323. 

As well as in cases of idiocy, lunacy 
and non compos mentis. — The jurisdic- 
tion of a probate court "in cases of 
idiocy, lunacy and non compos mentis," 
is not exclusive but concurrent with that 
of the court of common pleas. Walker v. 
Russel, 10 S. C. 82. 

And in a proceeding for accounting by 
an administrator. — In an action for an 
accounting against an administrator the 
court of common pleas has concurrent 
jurisdiction with the probate court. 
Beatty v. National Surety Co., 132 S. C. 
45, 128 S. E. 40, 43. 

In an action upon an administrator's 
bond, a judgment of the probate court 
establishing a devastavit or breach of 



bond is not a prerequisite to maintain- 
ing such action in the court of common 
pleas. Beatty v. National Surety Co., 132 
S. C. 45, 128 S. E. 40; Chapman v. Smith, 
133 S. C. 122, 130 S. E. 212; Bailey v. 
Cooley, 153 S. C. 78, 150 S. E. 473. 

Before the adoption of the constitution 
of 1868 and the present Code of Civil 
Procedure it seems that no action could 
be maintained on the administrator's 
bond at law until a decree be rendered 
against the administrator either by the 
ordinary or the court of equity. This 
rule was grounded on the common law 
distinction between courts of law and 
courts of equity. See Beatty v. National 
Surety Co., 132 S. C. 45, 128 S. E. 40, 42. 
—Ed. Note. 

Judgments and decrees of court are 
binding on parties to record. — Judg- 
ments and decrees of a probate court, a 
court of limited jurisdiction but with 
extensive powers, are as binding upon 
the parties to the record as the judgment 
of any court. Dyson v. Jones, 65 S. C. 
308, 43 S. E. 667, 670. 

Even to the exclusion of the right of 
homestead when not asserted. — The 
judgment of a probate court as to the 
necessity of a sale and the sale of realty 
binds all parties to the record even to 
the exclusion of right of homestead not 
asserted. Dyson v. Jones, 65 S. C. 308, 
43 S. E. 667, 671. 

And are not subject to collateral at- 
tack except for fraud. — The decree of a 
probate court determining the amount 
of a note is binding on the parties to the 
record and cannot be assailed in a col- 
lateral action except upon some ground 
of equitable cognizance, as fraud. Dyson 
v. Jones, 65 S. C. 308, 43 S. E. 667, 671. 

A judgment of the probate court, regu- 
lar on its face, cannot be attacked in a 
collateral proceeding. Tederall v. Bouk- 
night, 25 S. C. 275, 280. And this is true 
of the granting of letters of administra- 
tion. Phoenix Bridge Co. v. Castleberry, 
131 Fed. 175, note of which is placed un- 
der § 220. 

Order on ex parte proceeding in pro- 
bate court is not final and binding on 
trust beneficiaries unless brought be- 
fore court. State ex rel. Daniel, Atty. 
Gen., v. Strong, et al., 185 S. C. 27, 192 
S. E. 671. 

Validity of petitioner's marriage to de- 
ceased may be determined by probate 
court as an incident to determining right 
to administration. Ex Parte Blizzard, 185 
S. C. 132, 193 S. E. 633. 



§ 209. In relation to guardians. — The judge of probate shall have jurisdic- 
tion in relation to the appointment and removal of guardians of minors, 
insane and idiotic persons, and persons non compos mentis, and in relation 



§ 209 



Code of Civil Procedure 



Page 92 



to the duties imposed by law on such guardians, and the management and 
disposition of the estates of their wards. He shall exercise original juris- 
diction in relation to trustees appointed by will. 

1932 Code, § 209 (14); Civ. P. '22, § 167; Civ. P. '12, § 43; Civ. P. '02, § 38; 1870 (14) 
§ 39; Con. Art: V., § 19. 



Cross reference. — See the next fore- 
going section and the note thereto. As to 
prohibition against collateral attack on 
court's jurisdiction, see § 221 and the 
note thereto. 

Court has general jurisdiction over 
estates of minors and of their guardians. 
—Under the Constitution of 1895, Art. 5, 
§ 19, and the provisions of this and § 
223, the probate court is not inferior 
court but a court of independent and 
general jurisdiction of certain special 
subjects among which are matters ap- 
pertaining to the estate of minors and 
the duties imposed by law upon their 
guardians. Williams v. Weeks, 70 S. C. 
1, 48 S. E. 619, 620. See also, Dunlap v. 

Probate judge is vested with such pow- 
Savings Bank, 69 S. C. 270, 48 S. E. 49. 
ers as legislature sees fit. Bradford v. 
Richardson, 111 S. C. 205, 97 S. E. 58. 

Which jurisdiction possibly exists only 
during infancy of ward. — The question 
whether or not a probate court has juris- 
diction to compel a guardian to account 
for the estate of his ward, where the 
proceedings are commenced by the ward 
after arriving of age, was not actually 
decided by the court in Waller v. Cres- 
well, 4 S. C. 353, but the language used 
by the court would seem to indicate that 
it is doubtful, at least, whether jurisdic- 
tion exists in such case. 

But objection for lack of jurisdiction 
must be seasonably made. — Objection 
that the probate court is without juris- 
diction in a case because of its being in- 
stituted by a ward after attaining his 
majority will not be considered when 
made for the first time in the Supreme 
Court. Waller v. Creswell, 4 S. C. 353. 

When a court takes cognizance of cases 
in which the very nature of its organiza- 
tion prevents it from entertaining the is- 
sues made between the parties, and its 
means of administration prevent an en- 
forcement of any judgment it may there- 
in pronounce, the objection to its juris- 
diction may be made at any time; but 
where, having jurisdiction over the gen- 
eral subject, limited only by some quali- 
fication, as, possibly, here, the age of 
the party complaining, in the language 
of Chancellor Harper in Miller v. Furse, 
Bail Eq., 191, "there can be no hardship 
in requiring the objection to be made, 
in the first instance, before the delay 
and expense of preparing the case for 



trial," quoted, with approval in Waller 
v. Cresswell, 4 S. C. 353, 356. 

Court may require new bond of guard- 
ian where old one appears insufficient. 
— It is within the jurisdiction of a pro- 
bate judge when jeopardy of a minor's 
estate is brought to his attention to in- 
quire into the sufficiency of the guard- 
ian's bond, and, if necessary, to require 
a new one of adequate amount with suf- 
ficient sureties. Williams v. Weeks, 70 
S. C. 1, 48 S. E. 619, 620. 

And the taking thereof is a ministerial 
duty where necessity therefor appears. 
— If, after inquiry into the insufficiency 
of a guardian's bond, a probate judge 
holds a new bond to be necessary, his 
taking of the new bond becomes a min- 
isterial duty. Williams v. Weeks, 70 S. C. 
1, 48 S. E. 619. 

Court does not have express power to 
appoint personal guardian for minors. — 
This section does not expressly confer 
on the probate court the power to ap- 
point guardians of the persons of minors, 
therefore the right of a guardian ap- 
pointed by a probate court to the cus- 
tody of an infant child is inferior to the 
right of the child's father to his custody. 
Ex parte Davidge, 72 S. C. 16, 51 S. E. 
269. 

The appointment of a trustee to take 
the place of a deceased testamentary 
trustee, is not embraced within the juris- 
diction conferred by this section. Thom- 
as v. Poole, 19 S. C. 323. 

Approve expenditure of corpus of es- 
tate. — Probate court may approve the 
expenditure of part or all of corpus of 
estate belonging to infants, when reason- 
ably necessary for their maintenance or 
education. Beckwith et al. v. McAlister, 
165 S. C. 1 ,162 S. E. 623. 

But cannot authorize release of in- 
fant's property to pay parents' debts, 
even though infants participated in en- 
joyment of benefits for which debts 
were incurred. Ibid. 

See generally. — As to freedom of pro- 
bate judge's grant of administration on 
non-resident from collateral attack ex- 
cept for defect on record, see the catch- 
line "And a Negative Showing of Defect 
Will Not Warrant Collateral Attack," in 
note to § 221, in which is discussed the 
the case of Dunlap v. Savings Bank, 69 
S. C. 270, 48 S. E. 49. 



§ 210. Administration and probate of wills.— The probate of the will and 
the granting of administration of the estate of any person deceased shall 



Page 93 



Probate Court 



§ 211 



belong to the judge of probate for the county in which such person was 
last an inhabitant; but if such person was not an inhabitant of this State, 
the same shall belong to the judge of probate in any county in which the 
greater part of his or her estate may be. 

1932 Code, § 210; (14) Civ. P. '22, § 168; Civ. P. '12, § 44; Civ. P. '02, § 39; 1870 
(14) § 40. 



Cross reference. — As to prohibition 
against collateral attack on court's juris- 
diction, see § 221 and the note thereto. 
As to exclusiveness of jurisdiction once 
acquired, see § 220 and the note thereto. 

As to the freedom from attack in a col- 
lateral proceeding of the jurisdiction of 
a probate judge on a negative showing 
in the record, see catchline 'And a Neg- 
ative Showing of Defect Will Not War- 
rant Collateral Attack," in note to § 221, 
wherein is treated the case of Dunlap v. 
Savings Bank, 69 S. C. 270, 48 S. E. 49. 

State of domicile and not state of 



death proper for administration of es- 
tate. — The state of testator's domicile 
and not the state in which he died while 
temporarily absent from state of domi- 
cile is proper place for administration of 
his estate. Henson v. Wolfe, 130 S. C. 
273, 125 S. E. 293. 

Validity of petitioner's marriage to de- 
ceased may be determined by probate 
court as an incident to determining right 
to administration. Ex parte Blizzard, 185 
S. E. 132, 193 S. E. 633. 

See generally. Phoenix Bridge Co. v. 
Castleberry, 131 Fed. 175. 



§ 211. Settle estate in county where will proved or administration grant- 
ed. — All proceedings in relation to the settlement of the estate of any per- 
son deceased shall be had in the probate court of the county in which his 
will was proved or administration of estate was granted. 

1932 Code, § 211; Civ. P. '22, § 169; Civ. P. '12, § 45; Civ. P. '02, § 40; 1870 (14) 
§ 41; 1873 (15) 496; 1936 (39) 1420. 



In general. — This section is said to 
give to the probate judge important ju- 
dicial functions. Hodges v. Fabian, 31 
S. C. 212, 9 S. E. 820, 822. 

Court may sell realty and marshal the 
assets of estate. — Under this section and 
§ 208 a probate court has jurisdiction 
to sell real estate in aid of assets, and 
may marshal and administer the assets 
of a decedent. Dyson v. Jones, 65 S. C. 
308, 43 S. E. 667, 670. 

Which power is derived from the State 
Constitution. — It has been said that the 
jurisdiction to sell real estate as set out 
in this section is conferred on the pro- 
bate court by the Constitution (see 
Const., S. C. 1895, Art. 5, § 19). See Mc- 
Namee v. Waterburg, 4 S. C. 156. 

But this jurisdiction must be deter- 
mined before ordering the sale. — The ju- 
risdiction to sell real estate in aid of as- 
sets being founded on the insufficiency 
of the personal assets to pay the deced- 
ent's debts must be judicially deter- 
mined before ordering a sale of the real- 
ty. Dyson v. Jones, 65 S. C. 308, 43 S. E. 
667, 670; Hand v. Kelly, 102 S. C. 151, 
86 S. E. 382; Dorn v. Stidham, 139 S. C. 
66, 137 S. E. 331. 

Whenever it shall appear to "his satis- 
faction" that the personal estate is in- 
sufficient for the payment of the debts 
of an intestate, the probate judge shall 
determine the necessity of a sale, lands 
to be sold, etc. Hodges v. Fabian, 31 S. 
C. 212, 9 S. E. 820. 



Which determination must include an 
accounting of the personal assets. — A 

determination of the right to sell the 
realty must include an accounting of the 
personal assets, it not being known 
whether there is insufficiency of per- 
sonal assets until both assets and debts 
are ascertained. Dyson v. Jones, 65 S. 
C. 308, 43 S. E. 667, 670. 

And the extent of their insufficiency. 
— Having the power to determine the 
fact of insufficiency of the personal as- 
sets, the probate court has the power to 
determine the extent of the insufficiency 
of the personal assets, especially in view 
of the express jurisdiction to marshal 
and administer assets. Dyson v. Jones, 
65 S. C. 308, 43 S. E. 667, 671. 

And only the interest of the testator 
may be sold. — The interest of the testa- 
tor in the land can be sold but not the 
rights of the parties to the action in 
such lands as heirs of another party. 
McLaurin v. Rion, 24 S. C. 407. 

And court may pass upon validity of 
title thereto. — It seems that a probate 
judge can determine the validity of an 
alleged deed under which one of the de- 
fendants claim title to the land about to 
be sold as descended from the intestate. 
See Gregory v. Rhoden, 24 S. C. 90. 

But judge cannot be mandamused to 
sell realty or to execute title thereto. — 
Mandamus will not be against a probate 
judge to compel him to make a sale of 
realty in aid of assets or execute title 



§ 211 



Code of Civil Procedure 



Page 94 



to lands sold in aid of the assets. Bur- 
nett v. Burnside, 33 S. C. 276, 11 S. E. 
787. 

And the order of sale is not subject to 
collateral attack.— If a probate judge has 
jurisdiction of the subject matter and 
of the parties, his order for a sale of de- 
cedent's lands as set out in this section 
must be regarded as a judgment of a 
competent court upon a matter within 
its jurisdiction and not subject to col- 
lateral attack. Hodges v. Fabian, 31 S. 
C. 212, 9 S. E. 820. See, also, dissenting 
opinion in Bradley v. Calhoun, 116 S. C. 
7, 106 S. E. 843, 847. 

Nor is the order for sale void when 
proceeds thereof equal or exceed the 
debts of estate. — Although the insuffi- 
ciency of the personal property for the 
payment of a decedent's debts is the 
foundation of a probate court's jurisdic- 
tion to sell realty of decedent, yet his 
order of sale is not void at the moment 
the proceeds of the sale touch the full 
payment of the debts. Hodges v. Fabian, 
31 S. C. 212, 9 S. E. 820. 

Under the provisions of this section 
and § 208 an order of a probate judge 
for the sale of land the proceeds of 
which were in excess of the insuffi- 
ciency of the assets to pay decedent's 
debts was valid and not subject to col- 
lateral attack. Hodges v. Fabian, 31 S. C. 
212, 9 S. E. 820. 

Probate judge cannot sell as land of 
deceased land surrendered to distrib- 
utees of deceased by his mortgagor. 
Harrison v. Lightsey, 32 S. C. 293, 10 
S. E. 1010. 

Probate of will or grant of letters is 
prerequisite to sale of realty for debt. — 
An action by a creditor for the sale of 
realty in aid of the assets cannot be 
brought until the will of testator has 
been probated or letters of administra- 
tion granted. Whitesides v. Barber, 24 
S. C. 373. 

Probate court and common pleas court 
have concurrent jurisdiction to sell real- 
ty. — It seems that the probate court's 
jurisdiction to make a sale of realty as 
provided for in this section is concur- 



rent with that of court of common pleas. 
See McNamee v. Water bury, 4 S. C. 156; 
Jordan v. Moses, 10 S. C. 431; Finley v. 
Robertson, 17 S. C. 435; Scruggs v. Foot, 
19 S. C. 274; Shaw v. Barksdale, 25 S. 
C. 204; Dorn v. Stidham, 139 S. C. 66, 
137 S. E. 331. 

But the principle of comity will be re- 
spected. — See this catchline under § 208, 
where is treated the case of Beatty v. 
National Surety Co., 132 S. C. 45, 128 
S. E. 40, 43. 

And this concurrent jurisdiction ex- 
tends to an action for accounting of pro- 
ceeds of sale. — Probate court and court 
of common pleas have concurrent juris- 
diction over an action against an ad- 
ministrator for an accounting of funds 
from the sale of realty as here provided 
for and the court first acquiring jurisdic- 
tion should retain it. Epperson v. Jack- 
son, 83 S. C. 157, 65 S. E. 217. 

Section not applicable to action 
against a surety on an administrator's 
bond. — This and § 221 are not applicable 
to an action against a surety on an ad- 
ministrator's bond for breach of the 
bond. Beatty v. National Surety Co., 132 
S. C. 45, 128 S. E. 40, 44. 

Proceeding for removal of executor 
should be instituted in county of pro- 
bate. — Under this and § 220 a suit to re- 
move an executor should be brought in 
the county in which the testatrix lived, 
owned real and personal property, and 
in which her will was duly filed for pro- 
bate. Smith v. Heyward, 107 S. C. 542, 
93 S. E. 195. 

And this is true of an action for ac- 
counting by an executor of an executor. 
— Under the provisions of this section an 
action against a personal representative 
of an executor's estate for an accounting 
of the management of testatrix's estate 
by the deceased executor must be 
brought in the probate court which pro- 
bated the testatrix's will and first ob- 
tained jurisdiction. French v. Way, 93, 
S. C. 522, 76 S. E. 617. See, also, § 220 
and note thereto. 

See generally. Phoenix Bridge Co. v. 
Castleburry, 131 Fed. 175. 



§ 212. Certain probate notices or citations not required to be published. — 

It shall not be necessary to publish in any newspaper, any notice or cita- 
tion relating to any estate in the courts of probate, where the value of 
such estate or estates, does not exceed five hundred dollars: provided, that 
in such cases the notices required by law shall be posted at the door of 
the court house of the county where such estate or estates may be situated, 
for the time required by law. 
1932 Code, § 212; Civ. P. '22, § 170; Civ. P. '12, § 46; (20) 1911 (28) 135; 1933 (38) 493. 



§ 213. When to grant discharge to administrators, etc. — It shall not be 
lawful for any judge of probate in this State to grant a final discharge to 



Page 95 



Probate Court 



§ 214 



any executor, administrator, trustee, guardian, or committee, unless such 
executor, administrator, trustee, guardian or committee shall have finally 
accounted for the estate in his hands, and have given notice in a news- 
paper of the county (if there be no newspaper published in the county, 
then in some newspaper having the greatest circulation therein) for the 
space of at least one month, that on a day certain application will be made 
to the said judge of probate for a final discharge. No such discharge shall 
affect any distributee, legatee, cestui que trust, ward, or lunatic, who has 
not been made a party to such application, either by personal service of the 
notice, or by publication in the mode provided for absent defendants. 

1932 Code, § 213; Civ. P. '22, § 171; Civ. P. 42, § 47; Civ. P. '02, § 41; 1869 (14) 
263, § 1; 1894 (21) 719. 



Editor's note. — Formerly this section 
had a proviso that the publication of no- 
tice of application for discharge should 
be tri-weekly in Charleston and Rich- 
land counties. See Quick v. Campbell, 44 
S. C. 386, 22 S. E. 479, 482. 

Discharge of administrator is not con- 
clusive of settlement of estate. — The 
granting of a discharge to an adminis- 
trator in accordance with the provisions 
of this section does not conclusively de- 
termine that the estate has been wholly 
and completely settled. McNair v. 
Howie, 123 S. C. 252, 116 S. E. 279, 285. 

And court may appoint administrator 
de bonis non. — See this catchline under 
§ 208, where is treated the case of Mc- 
Nair v. Howie, supra. 

Even after it has discharged the gen- 
eral administrator. — Under its broad 
constitutional and statutory powers, a 
probate court may appoint an adminis- 
trator de bonis non after it has discharg- 
ed the general administrator even 
though that order of discharge has not 
been revoked. McNair v. Howie, 123 S. 
C. 252, 116 S. E. 279, 285. 

The approval of the final report and 
discharge of a former administrator may 
have the force and effect of a judgment 
vacating the office, yet it is not conclu- 
sive that the estate has been wholly set- 
tled so as to preclude the appointment 
of an administrator de bonis non. Mc- 
Nair v. Howie, 123 S. C. 252, 116 S. E. 
279. 

Though the discharge will protect 
general administrator from further lia- 
bility. — Where an administrator has 
fully, fairly, and faithfully administered 
the estate in his hands, and, after due 
advertisement, as set out in this section, 
and after due service of personal notice 
upon those entitled thereto, has obtain- 
ed an order of discharge from the pro- 
bate court, such decree should protect 
him from further liability and should 
relieve him from any obligation again 



to take up the burden of the trust by 
reason of after-discovered claims or as- 
sets. McNair v. Howie, 123 S. C. 252, 116 
S. E. 279, 284. See, also, § 208 and note 
thereto. 

"One month" means one calendar 
month. — The publication for one month 
of an application for discharge of an ad- 
ministrator means one calendar month. 
Brock v. Kirkpatrick, 72 S. C. 491, 52 S. 
E. 592. 

As to general method of computing 
time, see § 821 and the note thereto. 

As to computation of time for publica- 
tion of notices, see § 822 and note 
thereto. 

Order of discharge is binding on heirs 
after six years. — After a lapse of six 
years an order discharging an adminis- 
trator of a surety on an administrator's 
bond, as set out here, will become bind- 
ing on the heirs of the estate for the pro- 
tection of which the bonds was given 
and on a co-surety thereon. Quick v. 
Campbell, 44 S. C. 386, 22 S. E. 479. 

This section does not limit jurisdiction 
of court of common pleas. — It has been 
said that the provisions of this section 
and §§ 220, 221 and 264 were not in- 
tended to limit the jurisdiction of the 
court of common pleas but only to pre- 
scribe the limits of the jurisdiction of 
the probate courts as between them- 
selves. See Jordan v. Moses, 10 S. C. 431. 

Surety on official bond of probate 
judge liable to distributees for funds 
converted by judge, where checks pay- 
able to probate judge and to distributees 
were prepared and delivered by the ad- 
ministrator to the judge, who converted 
proceeds of checks to his personal use. 
Hunter et al. v. Boykin et al., 195 S. C. 
23, 10 S. E. (2d) 152. 

As to concurrent jurisdiction existing 
between probate court and court of com- 
mon pleas, see §§ 208, 211 and their re- 
spective notes. 



§ 214. Proceedings relative to estates under guardianship. — All proceed- 
ings in relation to the property or estate of any person under guardianship 



§ 214 Code of Civil Procedure Page 96 

shall be had in the court of probate of the county in which the guardian 
was appointed. 
1932 Code, § 214; Civ. P. '22, § 172; Civ. P. '12, § 48; Civ. P. '02, § 42; 1870 (14) § 42. 

§ 215. Judges not to act when interested — when judges of adjoining coun- 
ty to act. — No judge of probate shall act as such in the settlement of any 
estate wherein he is interested as heir or legatee, executor or administrator, 
or as guardian or trustee of any person; in every such case the judge of 
probate of any adjoining county shall have jurisdiction, and it shall be his 
duty, upon application, to attend at some term of the court of probate in 
which such case may be pending, which shall not interfere with the duties 
of his own county, and hear and determine such case. 

1932 Code, § 215; Civ. P. '22, § 173; Civ. P. '12, § 49; Civ. P. '02, § 43; 1870 (14) 
§ 43. 

Decision as to probate of will is not commissioned by the Governor for that 
binding on appeal from judgment of purpose. In re Mear's Estate, 75 S. C. 
special probate judge.— Where a circuit 482, 56 S. E. 7. 



judge has decided that probate of a will 



Disqualification of judge; waiver. — 



by a nudge from another county called in ,,,, ^ . . . ,_ Tu _ j- 

by the judge of the county of decedent's Where probate judge was then guardian 

residence, who had been appointed exec- of petitioner in action for accounting 

utor under the will and letters testa- against former guardian, such judge was 

mentary, could not be granted because disqualified; this might be waived by 

the substituted probate judge had no former guardian, but such waiver would 

such power, such decision is not binding not be binding on her bondsman. Lide et 

on a judge on appeal from the probate al. v. Fidelity & Deposit Co., of Mary- 

of the same will by a judge specially land, et al., 179 S. C. 161, 183 S. E. 771. 

§ 216. Power to administer oath. — The judge or clerk of the probate court 
shall have power to administer all oaths necessary in the transaction of 
business before the probate court, and all oaths required by law to be 
administered to persons executing trusts under the appointment of said 
court. 

1932 Code, § 216; Civ. P. '22, § 174; Civ. P. '12 § 50; Civ. P. '02, § 44; 1870 (14; 
§ 44. 

§ 217. Probate court may issue warrants and processes. — Probate courts 
may issue all warrants and processes, in conformity to the rules of law, 
which may be necessary to compel the attendance of witnesses, or to 
carry into effect any order, sentence, or decree of such courts, or the powers 
granted them by law. 

1932 Code, § 217; Civ. P. '22, § 175; Civ. P. '12, § 51; Civ. P. '02, § 45; 1870 (14) 
§ 45. 

§ 218. In cases of contumacy, may commit to jail. — If any persons shall 
refuse or neglect to perform any lawful order, sentence, or decree of a pro- 
bate court, such court may issue a warrant, directed to any sheriff or con- 
stable in the State, requiring him to apprehend and imprison such person 
in the common jail of the county, and if there be no jail in the county, 
then in the jail of the adjoining county, until he shall perform such order, 
sentence or decree, or be delivered by due course of law. 
1932 Code, § 218; Civ. P. '22, § 176; Civ. P. '12, § 52; Civ. P. '02, § 46; 1870 (14) § 46. 

§ 219. When deposition may be taken and used. — When a witness whose 
testimony is necessary to be used before any probate court shall reside 



Page 97 



Probate Court 



§ 221 



out of this State, or out of the county where said court is holden, or more 
than thirty miles from the county seat or by reason of age or bodily in- 
firmity, shall be unable to attend in person, the court may issue a com- 
mission to one or more competent persons to take the testimony of such 
witness; and depositions taken according to the provisions of the law for 
taking dispositions to be used on the trial of civil causes may be used on 
the trial of any question before the probate court where such testimony 
may be proper. 
1932 Code, § 219; Civ. P. '22, § 177; Civ. P. '12 § 53; Civ. P. '02, § 47; 1870 (14) § 47. 



§ 220. Exclusive jurisdiction after once acquired. — When any probate 
court shall have first taken cognizance of the settlement of the estate of 
a deceased person, such court shall have jurisdiction of the disposition and 
settlement of all the personal estate of such deceased person to the exclu- 
sion of all other probate courts. 

1932 Code, § 220; Civ. P. '22, § 178; Civ. P. '12, § 54; Civ. P. '02, § 48; 1870 (14) § 48. 



See § 208 and the note thereto. 

As to the jurisdiction of a personal 
representative of an executor who died 
in a different jurisdiction, see the catch- 
line "And This Is True of an Action for 
Accounting by an Executor of an Exec- 
utor," in note to § 211, wherein is treat- 
ed the case of French v. Way, 93 S. C. 
522, 76 S. E. 617. 

Grant of letters gives court cognizance 
of estate. — A probate court first takes 
cognizance of, the settlement of an es- 
tate, to comply with the provisions of 
this section, when it grants letters of 
administration, as the filing of the peti- 
tion is ex parte and the issue of citation 
is a ministerial act. Phoenix Bridge Co. 
v. Castleberry, 131 Fed. 175. 

And such grant of letters is not sub- 
ject to collateral attack. — It is a settled 
rule of law of the state courts of South 
Carolina that the first grant of letters 
of administration by a domestic probate 
court — even when made by a court not 
having jurisdiction of the particular es- 
tate in question — cannot be collaterally 
attacked. Phoenix Bridge Co. v. Castle- 
berry, 131 Fed. 175. 



Except where jurisdiction is lacking. 

— The right of collateral attack on a 
judgment for want of jurisdiction is a 
question of general law, therefore a 
judgment of a state court is not binding 
on a Federal court in which the state 
court decision is relied on. Phoenix 
Bridge Co. v. Castleberry, 131 Fed. 175. 

The federal and state courts are for- 
eign to each other, though sitting in the 
same state, in that the jurisdiction of 
the one is always subject to collateral at- 
tack in the other when a judgment of 
the one is relied on in the other. Phoenix 
Bridge Co. v. Castleberry, 131 Fed. 175. 

Court's jurisdiction concurrent with 
that of court of common pleas unless 
matter is res judicata. — See this catch- 
line under § 208, where is treated the 
case of Beatty v. National Surety Co., 
132 S. C. 45, 128 S. E. 40, 43. 

But the principle of comity will be re- 
spected. Beatty v. National Surety Co., 
132 S. C. 45, 128 S. E. 40, 43, note of 
which is placed under § 208. 

See generally, Jordan v. Moses, 10 S. 
C. 431. 



§ 221. Jurisdiction not to be collaterally impeached. — The jurisdiction as- 
sumed by any probate court in any case, so far as it depends on the place 
of residence or the location of the estate, shall not be contested in any suit 
or proceeding what ever, except in an appeal from the probate court in 
the original case, or when the want of jurisdiction appears on the record. 
1932 Code, § 221; Civ. P. '22, § 179; Civ. P. '12, § 55; Civ. P. '02, § 49; 1870 (14) § 49. 



See § 210 and the note thereto. 

Jurisdictional defect must affirmative- 
ly appear of record to warrant collateral 
attack. — The effect of this section is to 
exempt the judgment of the probate 
court in so far as jurisdiction depends 
on residence of the intestate or the loca- 
tion of assets from an attack by a de- 
fendant debtor, except for want of juris- 



diction appearing on the record. In re 
Mayo's Estate, 60 S. C. 401, 38 S. E. 634, 
54 L. R. A. 660. See § 210 and note there- 
to; also § 230 and note. 

Although the deceased was not a resi- 
dent of the state nor owned property 
therein as set out in § 210, yet if these 
facts did not appear on the record in the 
granting of administration of his estate, 



§ 221 Code of Civil Procedure Page 98 

the jurisdiction of probate court to grant 270, 48 S. E. 49, 50. 

the administration cannot be attacked Therefore, where the record does not 

collaterally. In re Mayo's Estate, 60 S. C. affirmatively show that the greater part 

401, 38 S. E. 634. of decedent's estate, if a nonresident, 

Otherwise the court's jurisdiction is was not situate in the county in which 

presumed regular. Dunlap v. Savings letters of administration were granted 

Bank of Rock Hill, 69 S. C. 270, 48 S. E. (see § 210), such grant may not be col- 

49. laterally attacked. Dunlap v. Savings 

And a negative showing of defect will Bank of Rock Hill, 69 S. C. 270, 48 S. E. 

not warrant collateral attack. — In the 49, 50. 

case of Hendrix v. Holden, 58 S. C. 495, In the dissenting opinion of Muldrow 

36 S. E. 1010, the court makes a distinc- v. Jeffords, 144 S. C. 509, 142 S. E. 602, 

tion between letters of administration it was said that as the record showed on 

that show affirmatively the want of ju- its face that a will had not been contest- 

risdiction, and where it only negatively ed in the probate court, the decree of a 

appears; and they hold in that case that court of common pleas as to its validity 

the granting of the letters of adminis- should be declared void in a collateral 

tration by the probate court must be proceeding for want of jurisdiction, 

presumed regular in all respects, when Cited in Jordan v. Moses, 10 S. C. 431; 

questioned in another proceeding, unless Henson v. Wolfe, 130 S. C. 273, 125 S. E. 

the defect appears affirmatively on the 293; Beatty v. National Surety Co., 132 

face of the record. Followed in Dunlap S. C. 45, 128 S. E. 40, 44; Phoenix Bridge 

v. Savings Bank of Rock Hill, 69 S. C. Co. v. Castleberry, 131 Fed. 175. 

§ 222. When minor may choose guardian — guardian interested — 'where 
appointed. — When, by law, a guardian is required to be appointed of a 
minor, who is interested as heir or legatee, or representative of such heir 
or legatee, in any estate which is in a course of settlement, such guardian 
shall be appointed by the probate court before which such estate is in 
course of settlement; but afterwards, if the minor shall reside in another 
county, and is of the age of fourteen years, he may choose and have a 
guardian appointed in the county where he shall reside; and in that case 
the powers of the former guardian shall cease, and to such proceedings he 
shall be made a party. In all other cases, guardians shall be appointed by 
the probate court of the county where the persons for whom the guardian 
shall be appointed shall reside. 
1932 Code, § 222; Civ. P. '22, § 180; Civ. P. '12, § 56; Civ. P. '02, § 50; 1870 (14) § 50. 

See § 8619. 

§ 223. Authorized to permit sale and settle accounts of guardian. — The 

probate court by which a guardian shall be appointed shall have jurisdic- 
tion of the estate of the ward, and shall be alone authorized to permit the 
sale of such estate, and settle such guardian's accounts. 
1932 Code, § 223; Civ. P. '22, § 181; Civ. P. '12, § 57; Civ. P. '02; § 51; 1870 (14) § 51. 

As to appointment and removal of under § 209, where Williams v. Weeks, 

guardian, see § 209 and note thereto. 70 S. C. 1, 48 S. E. 619, and other cases 

Court has general jurisdiction over pertinent to the provisions of the instant 

estates of minors and of their guardians, section, are treated. 
■ — See this and the succeeding catchlines 

§ 224. Judges may appoint times and places for holding courts. — Except 
as provided in section 205, the probate court in each county shall appoint 
such times and places for holding courts, or for hearing any special mat- 
ter, as shall be judged most convenient for all persons interested, and shall 
give notice of such times and places to the parties interested. 

1932 Code, § 224; Civ. P. '22, § 182; Civ. P. '12, § 58; Civ. P. '02, § 52; 1870 (14) 
§ 52; 1873 (15) 496. 

§ 225. Open at all times for certain business. — The probate court shall 



Page 99 Probate Court § 228 

be deemed open at all times for the transaction of ordinary business which 
may be necessary, when previous notice is not required to be given to the 
persons interested. 
1932 Code, § 225; Civ. P. '22, § 183; Civ. P. '12, § 59; Civ. P. '02, § 53; 1870 (14) § 53. 

§ 226. Adjournment of court — when by clerk. — A probate court may be 
adjourned as occasion may require; and when the judge is absent at the 
time for holding a court, the clerk may adjourn it. 

1932 Code, § 226; Civ. P. '22, § 184; Civ. P. '12 § 60; Civ. P. '02, § 54; 1870 (14) 
§ 54. 

§ 227. Probate judge to file with county auditor descriptions of real 
estate — of estates — proviso. — The judge of probate shall file with the 
county auditor of his county within ten days after the receipt thereof a 
copy of the description of all real estate filed with him by any executor, 
executrix, administrator, administratrix, or trustee, together with the name 
or names of the party or parties filing the same, together with the name 
of the deceased person, to whom such real estate belonged: provided, that 
in all cases where real estate is located in more than one county the judge 
of probate shall certify to the auditor in any county where such deceased 
person may have had real estate at the time of his death. 
1932 Code, § 227; 1923 (33) 117. 

§ 228. Appellate jurisdiction of circuit court. — The circuit court shall have 
appellate jurisdiction of all matters originally within the jurisdiction of 
the probate court. 
1932 Code, § 228; Civ. P. '22, § 185; Civ. P. '12, § 61; Civ. P. '02, § 55; 1870 (14) § 55. 

As to the concurrent jurisdiction of were an original cause in that court, and 

circuit court, see catchline "And This the parties are at liberty to raise new 

Concurrent Jurisdiction Extends to an questions, never considered by the or- 

Action for Accounting of Proceeds of dinary, or even made before him. Myers 

Sale," in note to § 211, wherein is treat- v. O'Hanlon, 12 Rich. Eq. 203, cited in 

ed the case of Epperson v. Jackson, 38 In re Solomon's Estate, 74 S. C. 189, 54 

S. C. 157, 65 S. E. 217. S. E. 207, 208. See § 233 and the note 

Circuit court generally has only ap- thereto. 

pellate jurisdiction. — The theory of this On appeal from the probate court on 

section is that where a case originally probate of a will to the circuit court the 

within the jurisdiction of the court of cause is to be tried anew, and must be 

probate is carried by appeal to the cir- regarded as a law case. In re Solomon's 

cuit court, the last named court can Estate, 74 S. C. 189, 54 S. E. 207. 

exercise appellate jurisdiction only. Ex And the circuit court can review all 

parte White, 33 S. C. 442, 12 S. E. 5. findings of probate court.— The circuit 

Except where an issue of fact or title court has, under this section, the power 

to land is to be decided. — Where a case to review all the findings of the probate 

originally within the jurisdiction of the court. Ex parte Small, 69 S. C. 43, 48 

probate court has been heard there, and court. Ex parte Small, 69 S. C. 43, 48 

carried thence by appeal to the circuit S. C. 40, 62 S. E. 254. 

court, the hearing in the circuit court is And such findings of fact by probate 

strictly on appeal except where an is- court ought not to be disturbed unless 

sue of fact or of title to land is to be de- clearly erroneous. Gunning v. Ervin, 13 

cided, either party may apply to the cir- S. C. 37; Sartor v. Fidelity & Deposit 

cuit court for an order that such issue Co., 160 S. C. 390, 158 S. E. 819. 

may be tried by a jury. Ex parte White, And it may consider the evidence ad- 

33 S. C. 442, 12 S. E. 5. See, also, Stew- duced in probate court. — The circuit 

art v. Blease, 4 S. C. 44; Stark v. Hopson, court having, under the provisions of 

22 S. C. 42. this section, the power to reveiw all the 

In which case a new trial is granted, findings of the probate court can con- 

— If an issue of fact is involved in the sider the evidence given in the probate 

probate of a will, the cause is to be tried court as to fitness and personal qualifi- 

anew in the circuit court, as though it cations of an applicant for administra- 



§ 228 



Code of Civil Procedure 



Page 100 



tor of an estate. Ex parte Small, 69 S. C. 
43, 48 S. E. 40. 

An order of a probate court appointing 
an administrator of an estate is a final 
order and may be taken on appeal to 
the circuit court wherein all findings of 
the probate court may be reviewed. Ex 
parte Small, 69 S. C. 43, 48 S. E. 40. 

But case cannot be sent back for pur- 
pose of taking omitted testimony. — An 



order from the circuit court sending a 
case back to the probate court to take 
testimony on a certain question, which 
had been omitted at the original hear- 
ing, is erroneous as being without the 
appellate jurisdiction of the circuit 
court in such cases. Ex parte White, 33 
S. C. 442, 12 S. E. 5, expressly overrul- 
ing the case of Twitty v. Houser, 7 S. 
C. 153. 



§ 229. Jurisdiction of Supreme Court in probate matters. — The Supreme 
Court shall have jurisdiction of all questions of law arising in the course 
of the proceedings of the circuit court, in probate matters, in the same 
manner as provided by law in other cases. 

1932 Code, § 229; Civ. P. '22, § 186; Civ. P. '12, § 62; Civ. P. '02, § 56; 1870 (14) § 56. 



As to general jurisdiction of Supreme 
Court, see § 26 and the note thereto. 

Findings of fact by circuit court in 
chancery matters are not final. — In mat- 
ters in chancery originating in the pro- 
bate court, the findings of the circuit 
court as to question of fact are not final 
but are subject to be reviewed and re- 
versed as in other appeals in chancery, 
if opposed to the clear weight of the 
testimony. In re Solomon's Estate, 74 
S. C. 189, 54 S. E. 207. 

But its findings of fact in matters 
other than chancery are not subject to 
review. — In matters other than matters 
in chancery originating in the probate 
court, such as probate of wills, the Su- 
preme Court has no power to review 
finding of fact of the circuit court made 
by that court on appeal from the pro- 
bate court. In re Solomon's Estate, 74 
S. C. 189, 54 S. E. 207. 

On appeal from the probate court to 
the circuit court on probate of a will, 
the cause must be regarded as a law 
case, the issue of will or no will being 
legal in its nature, and the circuit 
court's findings of fact are not review- 
able by the Supreme Court. Thames v. 
Rouse, 82 S. C. 40, 62 S. E. 254. 

If the question before the appellate 
court in a law case be a question of fact 



the judgment below must be affirmed. 
Guerin v. Hunt, 118 S. C. 32, 110 S. E. 
71, 74. See, also, Black v. White, 13 S. 
C. 37. 

Where there is no conflict in the testi-- 
mony or no evidence upon a material 
matter the question presented is one of 
law and is subject to review by the Su- 
preme Court, but if the evidence is con- 
tradictory it is ordinarily one of fact 
and cannot be reviewed by the Supreme 
Court. Guerin v. Hunt, 118 S. C. 32, 110 
S. E. 71. 

But Supreme Court may refer ques- 
tions to jury. — Issues of fact coming up 
to the Supreme Court on appeal in pro- 
bate matters may be referred to a jury. 
Shaw v. Cunningham, 9 S. C. 271. 

Improper remand of case by circuit 
court is denial of legal right. — An order 
of a circuit court remanding a cause 
in probate matter to the probate court, 
without hearing the appeal, for the pur- 
pose of obtaining omitted testimony de- 
nies the successful party below his legal 
right to have the appeal heard in the 
circuit court and such order is appeal- 
able in the Supreme Court. Ex parte 
White, 33 S. C. 442, 12 S. E. 5. See note 
to this case under § 228, catchline "But 
Case Cannot Be Sent Back for Purpose 
of Taking Omitted Testimony." 



§ 230. Appeal to circuit court to be taken within 15 days. — Any person 
interested in any final order, sentence, or decree of any probate court, and 
considering himself injured thereby, may appeal therefrom to the circuit 
court in the same county, at the stated session next after such appeal. The 
grounds of appeal shall be filed in the office of the probate court, and a copy 
thereof served on the adverse party, within fifteen days after notice of the 
decision appealed from. 

1932 Code, § 230; Civ. P. '22, § 187; Civ. P. '12, § 63; Civ. P. '02, § 57; 1870 (14) § 57; 
1839 (11) 60 S 13. 



As to jury trial on appeal from order 
disallowing claim, see catchline "But 
Jury Trial on All Questions of Fact Is 
Not Allowable," see note to § 233, where- 
in is treated the case of Hughes v. Kirk- 



patrick, 37 S. C. 161, 15 S. E. 912. 

This section must be construed with 
§ 232. Robertson v. Curlee, 59 S. C. 454, 
38 S. E. 116, 117. 

Only parties to the action below can 



Page 101 



Probate Court 



§ 230 



appeal. — The parties to the cause of ac- 
tion below are the only ones entitled to 
an appeal from that decree. Witte Bros. 
v. Clarke, 17 S. C. 313. 

Because only parties are affected by 
decree. — The language "any person in- 
terested in any final order, sentence or 
decree of any probate court, and consid- 
ering himself injured thereby, may ap- 
peal therefrom," must be regarded as 
referring only to persons who are parties 
to the proceedings in the court of pro- 
bate, for no one can properly be said to 
be interested in any final order or de- 
cree made in a proceeding to which he 
is not a party, nor can he consider him- 
self injured thereby; for nothing can 
be better established than the doctrine 
that judgments bind only parties and 
their privies. Witte Bros v. Clarke, 17 
S. C. 313, 323. 

No appeal having been taken from the 
finding of the probate court that a sec- 
ond appointee was decedent's son, a 
nephew, first appointed and later re- 
voked, could not complain of the ap- 
pointment, though there was no citation, 
for he was not an interested party with- 
in the provisions of this section. In re 
Jones' Estate, 102 S. C. 110, 86 S. E. 203. 

"Final" Order means final as to all 
parties to the proceedings. — The "final" 
order here set out means final as to the 
rights of all parties to the proceedings. 
Robertson v. Curlee, 59 S. C. 454, 38 S. 
E. 116. 

The denial of a motion that certain 
persons be made parties to the record is 
not a "final order" within the meaning 
of this section. Robertson v. Curlee, 59 
S. C. 454, 38 S. E. 116. 

The appointment of an administrator 
is a final order from which an appeal 
lies under this section. See ex parte 
White, 38 S. C. 41, 16 S. E. 286, 288; ex 
parte Small, 69 S. C. 43, 48 S. E. 40. 

Entry of appeal to circuit court may 
not be delayed indefinitely. — In the light 
of the definite statutory provisions as to 
the time for perfecting appeals from 
other courts, no presumption is to be 
indulged that the legislature intended to 
leave the entry in the circuit court of an 
appeal from the probate court wholly in- 
definite as to time. Fultz v. McKnight, 
125 S. C. 115, 118 S. E. 37. Cited with 
approval in Boggs-Tate Co. v. Bishop, 
149 S. C. 69, 146 S. E. 677. 

And copy of probate record must be 
filed in next stated session. — In the light 
of this and § 231 the time for filing in 
the circuit court a certified copy of the 
record of the proceedings appealed from 
is before "the stated session" of the cir- 
cuit court "next after such appeal." 
Fultz v. McKnight, 125 S. C. 115, 118 S. 
E. 37; Ex parte Apeler, 35 S. C. 417, 14 
S. E. 931. Cited with approval in Boggs- 



Tate Co. v Bishop, 149 S. C. 69, 146 S. 
E. 677. 

Otherwise the appeal will be dismissed 
and decree affirmed. — Where respond- 
ents served notice of an appeal to the 
circuit court from a decree of the pro- 
bate court admitting the will to probate, 
but failed to file a return before the 
session met after such appeal, as re- 
quired by this and §§ 231 and 234, the 
appeal will be dismissed and the pro- 
bate decree affirmed. Fultz v. McKnight, 
125 S. C. 115, 118 S. E. 37. See, also, Wat- 
son v. Pollitzer, 72 S. C. 387, 51 S. E. 
914. See § 235 and the note thereto. 

Even before trial of merits. — An ap- 
peal from the probate court to the cir- 
cuit court may be dismissed before the 
case is called on its merits, for failure 
of appellate to perfect appeal as re- 
quired by this and § 231. Boggs-Tate Co. 
v. Bishop, 149 S. C. 69, 146 S. E. 677. 

But next stated session need not be 
the one immediately following. — Appel- 
lant being allowed 15 days after notice 
of the probate decree to file notice of 
appeal, if such notice is received within 
less than 15 days of an approaching ses- 
sion of the circuit court, by deferring the 
service of notice of appeal to as late a 
day as possible within the limits of the 
15-day period available, the next stated 
session need not be the one immediately 
following the filing of the probate de- 
cree. Fultz v. McKnight, 125 S. C. 115, 
118 S. E. 37, 38. Cited with approval in 
Boggs-Tate Co. v. Bishop, 149 S. C. 69, 
146 S. E. 677. 

A decree refusing appeal because it 
was not taken in time is appealable. 
Henderson v. Wyatt, 8 S. C. 112. 

Filing of return confers jurisdiction 
on circuit court. — Where an appellant 
causes certified copies of the pleadings, 
decree, notice, and grounds of appeal to 
be filed in the circuit court, as provided 
in this and following sections for an ap- 
peal from the probate to the circuit 
court, he has made such return as will 
give the court jurisdiction, though the 
probate judge omits to endorse on the 
copy, notice and ground of appeal, ac- 
ceptance of service. Davenport v. Dav- 
enport, 61 S. C. 389, 39 S. E. 548. 

But if appeal is withdrawn prior to 
filing return probate jurisdiction is not 
lost. — The jurisdiction of the probate 
court continues until the record shows 
that it is lost. Where the notice of ap- 
peal is revoked prior to the filing of the 
return as herein provided for, the pro- 
bate court still has jurisdiction to re- 
voke its grant of letters of administra- 
tion. In re Jones' Estate, 102 S. C. 110, 
86 S. E. 203. 

Right of appeal generally precludes is- 
suance of certiorari. — When a right of 
appeal is provided from an inferior 



230 



Code of Civil Procedure 



Page 102 



court, a writ of certiorari will not be al- 
lowed also, except, possibly, in very ex- 
ceptional cases. Ex parte Gregory, 58 S. 
S. 114, 36 S. E. 433. 

Certiorari will not lie to a judgment of 
the probate court declaring a person to 
be of unsound mind, but appeal is the 
proper remedy, even though appellant 
was not served with process in the pro- 
bate court. Ex parte Gregory, 58 S. C. 
114, 36 S. E. 433. 

Issue of "will or no will" is practical- 
ly a new trial. — In Muldrow v. Jeffords, 
144 S. C. 509, 142 S. E. 602, 606, it 



is said that § 8932 practically confers 
jurisdiction of the issue of "will or no 
will" upon the court of common pleas. 
The procedure for the determination of 
this issue contemplates a new trial and 
does not contain a single element of an 
appeal. The right of review is, however, 
secured by the provisions of the in- 
stant section. 

Cited in In re Mayo's Estate, 60 S. C. 
401, 38 S. E. 634, 54 L. R. A. 660; in re 
Shier's Estate, 35 S. C. 417, 14 S. E. 931; 
Henson v. Wolfe, 130 S. C. 273, 125 S. E. 
293. 



§ 231. Probate court make return on appeal to appellate court. — Within 
thirty (30) days after such grounds of appeal being filed in the office of the 
the probate court, as provided in section 230, the probate court shall make 
a return to the appellate court of the testimony, proceedings and judg- 
ment and file the same in the appellate court. Such return may be com- 
pelled by attachment. Upon the appeal being finally disposed of, all such 
papers included in the return shall be returned to the probate court. 

1932 Code, § 231; Civ. P '22, § 188; Civ. P. '12, § 64; Civ. P. '02, § 58; 1870 (14) § 
60; 1939 (41) 111. 



Editor's note. — The practitioner is re- 
ferred to the note to the next foregoing 
section where is treated, among other 
things, the necessity of complying with 
the provisions of the instant section. The 



authorities have almost always consid- 
ered the two sections together. 

See generally. — Watson v. Pollitzer, 72 
S. C. 388, 51 S. E. 914. 



§ 232. Proceedings stayed by appeal. — When an appeal, according to law, 
is taken from any sentence or decree of the probate court, all proceedings 
in pursuance of the order, sentence, or decree appealed from, shall cease 
until the judgment of the circuit or Supreme Court is had; but if the appel- 
lant in writing waives his appeal before the entry of such judgment, pro- 
ceedings may be had in the probate court as if no appeal had been taken. 
1932 Code, § 232; Civ. P. '22, § 189; Civ. P. '12, § 65; Civ. P. '02, § 59; 1870 (16) § 61. 



Pending an appeal from its decree of 
"no will" probate court cannot appoint 
an administrator. — An appeal from an 
order or decree of the probate court 
shall act as a supersedeas, therefore dur- 
ing the pendency of an appeal from the 
probate court of a decree of no will, the 
probate court cannot grant letters of ad- 
ministration, as that would involve a de- 
termination of the question on appeal. In 
re Seay's Estate, 63 S. C. 130, 41 S. E. 
17. See, also, Wolfe v. Bank of Ander- 
son, 128 S. C. 174, 122 S. E. 592. 

But action by administrator c. t. a. 
against judgment debtor not affected. — 
An action by an administrator cum tes- 
tamento annexo against a judgment 
debtor of the estate during the pendency 
of an appeal from a probate judgment of 



no will is not within the provisions of 
this section as being a proceeding in 
pursuance of the decree appealed from. 
See Wolfe v. Bank of Anderson, 128 S. 
C. 174, 122 S. E. 592. 

And his execution on the judgment 
will not be enjoyed. — Pending appeal 
from probate decree declaring will in- 
valid, a judgment debtor cannot enjoin 
an administrator cum testamento annexo 
from enforcing judgment by execution; 
as only proceedings in pursuance of de- 
cree rejecting the will is stayed under 
the provisions of this section. Wolfe v. 
Bank of Anderson, 128 S. C. 174, 122 S. 
E. 592. 

Cited in Robertson v. Curlee, 59 S. C. 
454, 38 S. E. 116 (see note to § 230). 



§ 233. Circuit court proceed to trial and determination of questions. — When 
such return shall have been filed in the circuit court, such court shall pro- 
ceed to the trial and determination of the question, according to the rules 



Page 103 



Probate Court 



§ 233 



of law; and if there shall be any question of fact or title to land to be de- 
cided, issue may be joined thereon under the direction of the court, and a 
trial thereof had by jury. 

1932 Code, § 233; Civ. P. '22, § 190; Civ. P. '12, § 66; Civ. P. '02, § 60; 1870 (14) § 62; 
1939 (41) 111. 



"According to the rules of law" means 
the rules regulating the hearing of ap- 
peals. — When the circuit court takes a 
case on appeal from the probate court, 
it "shall proceed to the trial and deter- 
mination of the question, according to 
the rules of law," that is according to 
the rules regulating the hearing of ap- 
peals. Ex parte White, 33 S. C. 442, 12 
S. E. 5. 

Conflict in testimony as to material 
fact warrants reference to jury. — Where 
there is serious conflict in the testimony 
on a question of a material fact in the 
probate proceedings, the circuit court 
may, on appeal, refer the issue to a jury 
as provided for in this section. Ex parte 
Gantt, 75 S. C. 364, 55 S. E. 892. 

And this is true of issue of "void will". 
— On appeal from the probate court, 
in proceedings to prove a will in solemn 
form, where the issue was raised that 
the will was fraudulent and void, it is 
proper for the circuit court to try the 
issue de novo on issues framed by the 
circuit court on notice. In re Huntley's 
Will, 67 S. C. 55, 45 S. E. 132. 

But jury trial on all questions of fact 
is not allowable. — The language in this 
section as to right of trial by jury being 
permissive and not imperative implies 
that, when any question of fact arises 
under an appeal from the court of pro- 
bate, the court to which the appeal is 
addressed may frame an issue for trial 
by jury; but it does not imply that, 
whenever any question of fact arises 
upon such an appeal, either party has 
a right to demand that such question 
shall be tried by a jury. Hughes v. Kirk- 
patrick, 37 S. C. 161, 15 S. E. 912 (see 
note to § 230); see, also, Meier v. Kor- 
nahrens, 113 S. C. 270, 102 S. E. 285; in 
re Shier's Estate, 35 S. C. 417, 14 S. E. 
931. 

This section recognizes a right to jury 
trial of only "an issue of fact, in an ac- 
tion for the recovery of money only, or 
of specific real or personal property" as 
required to be so tried by § 584, and it 
was error for a circuit court, on motion 
of one of the parties to an appeal from 
the probate court, to grant an order 
framing and referring to a jury an issue 
as to whether or not there was a will, 
without notice to the opposite party, as 
required by cir. ct. rule 28. In re Shier, 
35 S. C. 417, 14 S. E. 931. See, also, Meier 
v. Kornahrens, 113 S. C. 270, 102 S. E. 
285; Ex parte White, 33 S. C. 442, 12 S. E. 
5; Rollin v. Whipper, 17 S. C. 32; Prater 



v. Whipple, 16 S. C. 40; Lucken v. Wich- 
man, 5 S. C. 411; Stewart v. Blease, 4 S. 
C. 37; 185 S. C. 131, 193 S. E. 633. 

And the granting thereof is discre- 
tionary with the court. Meier v. Korna- 
hrens, 113 S. C. 270, 102 S. E. 285, 286; 
Hughes v. Kirkpatrick, 37 S. C. 161, 15 
S. E. 912; Ex parte Blizzard, 185 S. C. 
131, 193 S. E. 633. 

Except where the right is given by 
statute. — It is not within the discretion 
of the court to refuse either party a jury 
trial where the appeal involves issues of 
fact as to the validity of a will, which 
right is given by a judicial construction 
of § 8934. Meier v. Kornahrens, 113 S. 
C. 270, 102 S. E. 285, 287; Johnson v. 
Johnson, 160 S. C. 158, 158 S. E. 264. 

But even the statutory right may be 
waived. — Even where a jury trial may 
be had as a matter of right, it may be 
waived and is waived by failing to claim 
it within the time provided for in rule 
28. Meier v. Kornahrens, 113 S. C. 270, 
102 S. E. 285, 287. 

If either party fails to serve the no- 
tice within the time required by the 
rule, the court may hold that he has 
waived his right to move for issues, and 
refuse, on that ground, to entertain his 
motion. But it does not follow that the 
court may not entertain such motions 
from either side after the lapse of the 
time specified in the rule, in the exer- 
cise of the discretion vested in it by 
§ 495 of the code of civil procedure, or 
that the court may not, thereafter, of 
its own motion, or at the suggestion of 
either side, submit issues to a jury for 
its own enlightenment. Such has ever 
been the practice in equity cases. Meier 
v. Kornahrens, 113 S. C. 270, 102 S. E. 
285, 287. 

And when allowed issue is to be joined 
under direction of the court. Meier v. 
Kornahrens, 113 S. C. 270, 102 S. E. 285, 
286. 

Time for making motion for jury trial 
is fixed by circuit court rule 28. — There 
is no specific time fixed for the making 
of the motion for jury trial, but as most 
of the issues of fact arising under this 
and the foregoing sections are issues in 
causes of an equitable nature, by com- 
mon consensus of the bench and bar, 
rule 28 of the circuit court, providing 
for 10 days' written notice "after issue 
is joined," of intention to move for jury 
trial, has been applied to the framing of 
issues on such appeals. Meier v. Korna- 
hrens, 113 S. C. 270, 102 S. E. 285, 286. 



§ 233 Code of Civil Procedure Page 104 

Rule 28 was not originally intended to respondent, if he desires such a trial, to 
apply to the framing of issues on appeals serve his notice of motion therefor with- 
from the probate court, but in the ab- in ten days after service of the excep- 
sence of any statutory provision, it has tions upon him, and, of course, as pro- 
been applied and has served the pur- v ided in the rule, either party may, 
pose fairly well. Id. within four days after the service of his 
The issues on appeal are made by the opp onent's notice upon him, give notice 
exceptions, or grounds of appeal, and that he m ask f additional issues; 

they determine whether the issues will , ,„„ ■ „, , + , + + „ K „ t , „,.„„,>,. „,.„„ 

be of law or of fact. Therefore the prac- f nd ™ e hold * at to , be the P£° £ er P™" 

tice has been for the appellant, who de- kc%Meier v. Kornahrens, 113 S. C. 270, 

sires a trial by jury, to give notice w ^\. ?„' r ■□ „■, ™ m 

thereof under rule 28 at the time of Clted ln Watson v. Polhtzer, 72 S. C. 

serving his exceptions, or at any time 387 > 51 s - E - 914 ! Davenport v. Daven- 

within ten days' thereafter, and for the P° r t> 61 S. C. 389, 39 S. E. 548. 

§ 234. Appellant neglecting to enter appeal judgment affirmed with costs. 

— If the person appealing from the proceedings of the probate court, as 
provided in this title, shall neglect to enter his appeal, the circuit court to 
which such appeal shall be taken, on motion, and producing attested copies 
of such appeal by the adverse party, shall affirm the proceedings appealed 
from, and may allow costs against the appellant. 

1932 Code, § 234; Civ. P. '22, § 191; Civ. P. '12, § 67, § 67; Civ. P. '02, § 61; 1870 
(14) § 64. 

Editor's note. — The practitioner is re- is made to § 230 and note thereto, 
ferred to the four preceding sections and See generally, Watson v. Pollitzer, 72 
their respective notes. Special reference S. C. 388, 51 S. E. 914. 

§ 235. Final decision to be certified to probate court. — The final decision 
and judgment in cases appealed, as herein before provided, shall be certi- 
fied to the probate court by the circuit court or Supreme Court, as the case 
may be, and the same proceedings shall be had in the probate court as 
though such decision had been made in such probate court. 
1932 Code, § 235; Civ. P. '22, § 192; Civ. P. '12, § 68; Civ. P. '02, § 62; 1870 (14) § 65. 

Failure to certify decision is not peal to Supreme Court. — Circuit court 

ground for reversal by Supreme Court. may certify to the probate court its af- 

■ — The failure of the circuit court to cer- firmation of the probate judgment after 

tify to the probate court its affirmation an appeal has been had from the cir- 

of the judgment appealed therefrom is cuit court to the Supreme Court. See 

no ground for reversal of that judgment Watson v. Pollitzer, 72 S. C. 387, 51 S. E. 

in the Supreme Court. Watson v. Pollit- 914. 

zer, 72 S. C. 387, 51 S. E. 914. Cited in In re Shier's Estate, 35 S. C. 

As certification may be made after ap- 417, 14 S. E. 931. 

§ 236. Probate judge no voice in determining appeal — when may practice 
law. — No judge of any probate court shall be admitted to have any voice 
in judging or determining any appeal from his decision, or be permitted to 
act as attorney or counsel thereon, or receive fees as counsel in any matter 
pending in the probate court of which he is judge: provided, it shall be 
lawful for judges of probate to practice law in other courts in such cases 
as are not cognizable in the courts of probate. 

1932 Code, § 236; Civ. P. '22, § 193; Civ. P. '12, § 69; Civ. P. '02, § 63; 1870 (14) § 66. 

See §§ 3640, et seq. 

§ 237. Proceedings may be commenced by petition. — Proceedings in the 
court of probate may be commenced by petition to the judge of probate for 
the county to which the jurisdiction of the subject matter belongs, or by 
complaint, briefly setting forth the facts or grounds of the application. A 



Page 105 Probate Court § 240 

summons shall be issued to the defendants in such proceedings, wherein 
the manner of service, time for answering, and other proceedings relating 
to the trial (except trial by jury), shall conform as nearly as may be to the 
practice in the courts of common pleas as provided in this code of pro- 
cedure. 
1932 Code, § 237; Civ. P. '22, § 194; Civ. P. '12, § 70; Civ. P. '02, § 64; 1870 (14) § 67. 

§ 238. Supreme Court to make rules — county commissioners to provide 
furniture, etc., for office. — The Supreme Court may, from time to time, 
make rules regulating the practice and conducting the business in the 
courts of probate, in all cases not expressly provided for by law; and the 
county commissioners of each county shall provide all books necessary for 
keeping the records of such court; also a seal and necessary office furniture: 
provided, said furniture shall not exceed in cost the sum of one hundred 
dollars. 
1932 Code, § 238; Civ. P. '22, § 195; Civ. P. '12, § 71; Civ. P. '02, § 65; 1870 (14) § 68. 

§ 239. May punish for contempt. — The judge may keep order in court, and 
punish any contempt of his authority in like manner as such contempt 
might be punished in the circuit or Supreme Court. 
1932 Code, § 239; Civ. P. '22, § 196; Civ. P. '12, § 72; Civ. P. '02, § 66; 1870 (14) § 69. 

§ 240. Enrollment of decrees. — Any party in whose favor an order or de- 
cree for the payment of money may be made by a court of probate, may 
cause such order or decree to be enrolled at any time within one year after 
making the same, and for that purpose shall prepare and deliver to the 
judge of probate a brief or abstract, setting forth the title of the proceed- 
ings wherein such order or decree was made, the parties thereto, and the 
date when the same was made; also the date of the said order and the names 
of the parties bound thereby, together with such other particulars as may 
be necessary to identify the said order with the proceedings, and to exhibit 
the grounds for making the same and the operation and effect thereof; and 
the judge of probate shall annex thereto the said order or decree, or an 
exact copy thereof, certified by him, together with the time when the same 
was made and entered; and shall endorse on the record the day of the 
month and year when the brief or abstract was lodged in his office, and 
shall deposit the same in a case in his office with the records pertaining to 
the cause. And no order or decree of any court of probate for the payment 
of money shall, as to third persons, without express notice, have any effect 
as a lien on the real estate of the person intended to be bound thereby but 
from the day when the said brief or abstract shall have been delivered to 
or lodged with the said judge of probate as aforesaid, and a transcript of 
the docket thereof in the index of money decrees hereinafter prescribed 
has been filed in the office of the clerk of the court of common pleas for the 
same county and duly entered by said clerk on the calendar of judgments 
kept in his office. Nor shall such order or decree rank as a judgment against 
the estate of any person deceased, unless such abstract was duly filed and 
indexed, and a transcript of the entry in the index filed with the clerk of 
the circuit court for the same county and duly docketed by the said clerk 
on the calendar of judgments of the court of common pleas before the death 
of such deceased person; except that the lien of decrees and orders for the 



§ 240 Code of Civil Procedure Page 106 

payment of money made prior to December 20, 1878, shall not be affected; 
and after the transcript of the docket in the index of money decrees has 
been duly entered upon the calendar of judgments kept in the office of the 
clerk of the court of common pleas, such order or decree shall have like 
force and effect as judgments of the courts of common pleas: provided, 
that such enrollment of any order or decree for the payment of money 
shall not deprive any party thereto of the right to appeal therefrom; but 
when notice of such appeal shall be duly given, execution upon the said 
order or decree, issued as herein provided, shall be lodged to bind only, 
and shall not be enforced until such appeal shall have been dismissed; and 
if such order or decree shall be reversed, set aside, or modified on appeal, 
the enrollment thereof shall be amended or wholly vacated accordingly. 
1932 Code, § 240; Civ. P. 22, § 197; Civ. P. '12, § 73; Civ. P. '02, § 67; 1878 (16) 710. 

Probate judge cannot arrest and im- Judgment for claim against Executor 

prison an administrator for failure to is prima facie evidence against devisees. 

comply with the terms of a money de- — Brock v. Kirkpatrick, 72 S. C. 491, 52 

eree. Gilliam v. McJunkin, 2 S. C. 442. S. E. 592. 

§ 241. To keep index of decrees enrolled. — Every judge of probate shall 
provide and keep in his office an index of money decrees, in which every 
enrolled order or decree for the payment of money shall be entered, with 
the names of every party or estate bound thereby, alphabetically arranged, 
together with the names of the parties plaintiff, and (besides the title of the 
package in which the order or decree is contained and the number in the 
package) shall exhibit the amount ordered to be paid, the costs (if any), 
date of enrollment, date of execution, and date of satisfaction, where satis- 
faction has been entered. Said book shall be of convenient size, of durable 
paper, and well bound, and the expense of providing the same shall be 
defrayed by the county commissioners of the respective counties. 
1932 Code, § 241; Civ. P. '22, § 198; Civ. P. '12, § 74; Civ. P. '02, § 68; 1878 (16) 711. 

See generally. Brock v. Kirkpatrick, 72 S. C. 491, 52 S. E. 592. 

§ 242. Empowered to issue executions. — Judges of the probate court are 
authorized and empowered to issue executions against property, when such 
process is necessary to carry into effect any order, sentence, or decree of 
such court, or for costs accruing therein. And they may issue executions 
against property in their respective counties, to enforce decrees from the 
probate courts of other counties, upon a transcript of such decree, and 
certificate of enrollment of the same, being filed in the office of the probate 
court from which such execution is to issue, and also in the office of the 
clerk of the court of common pleas for the county in which it is to issue. 
But no execution shall be issued by any judge of probate to enforce the 
collection of money under any order or decree of a court of probate until 
an abstract or brief has been prepared and filed according to the direction 
of section 240 and the proper minute thereof has been entered in the index 
of money decrees, and the proper transcript of such minute has been filed 
in the office of the circuit court for the same county and entered upon the 
calendar of judgments of the court of common pleas kept in his office. And 
when any such execution has been duly returned satisfied to the office of 
the judge of probate from whence it issued it shall be the duty of the judge 
of such court of probate to have such satisfaction recorded upon the proper 
transcript in the office of the clerk of the circuit court and entered upon 



Page 107 Probate Court 245 

the docket thereof on the calendar of judgments of the court of common 
pleas kept in said clerk's office. When no form of warrant or process is pre- 
scribed by statute or rules of court the probate judge shall frame one in 
conformity to the rules of law and the usual course of proceedings in this 
State. Any sheriff or constable in this State shall execute the orders or 
process of said court in the same manner as the orders or process of the 
circuit or Supreme Courts. 

1932 Code, § 242; Civ. P. '22, § 199; Civ. P. '12, § 75; Civ. P. '02, § 69; 1870 (14) § 71; 
1872 (15) 23; 1878 (16) 458. 

See generally, McKibben v. Salinas, 41 Cited in Brock v. Kirkpatrick, 72 S. C. 
S. C. 105, 19 S. E. 302, 303. 491, 52 S. E. 592. 

§ 243. Duties and powers of probate court in relation to minors enlarged 
and defined. — Whenever a petition shall be presented to the probate court, 
supported by affidavits, either on knowledge or on information and belief, 
that any child within its jurisdiction under the age of eighteen years is 
destitute or homeless, or is a beggar, or whose home, by reason of cruelty, 
neglect or depravity on the part of its parents, or other person in whose 
care it may be, is an unfit place for such child, or that any child is being 
required to work contrary to law, or in an unreasonable degree, the condi- 
tions and circumstances of the parents or person with whom it resides be- 
ing considered; or is incorrigibly mischievous or vicious, or is a persistent 
truant from school, or habitually associates with criminals or vicious or im- 
moral persons, or is growing up in ignorance or idleness, or is in imminent 
danger of becoming vicious or criminal; or whenever a report is made to 
the probate court by an officer of the law, as hereinafter provided, that any 
child under the age of eighteen years is liable to arrest or has been arrested 
for a violation of law, the said probate court shall issue a summons to the 
child and to its parent or parents or person with whom it resides, or in 
case of a child under arrest, to the officer in whose custody he then is, also 
to show cause why the supervision, care or custody of the said child should 
not be assumed by that court. Such summons shall be returnable within 
three days from the date of service. The issuing of such summons shall 
not be a stay of any criminal proceedings which have been instituted 
against such child and which are referred to in said petition or report except 
as hereinafter provided, in case the child has parent or parents within the 
jurisdiction of the court with whom the child does not reside, but whose 
residence is known or can with reasonable diligence be ascertained, the 
said parent or parents shall be summoned to appear before the court before 
the final disposition of the case. 
1932 Code, § 243; Civ. P. '22, § 201; Civ. P. '12, § 77; 1911 (27) 135, 136; 1912 (27) 762. 

§ 244. May summon witnesses. — The probate court shall have the power 
to summon before it any witnesses which it may deem necessary to a proper 
investigation and determination of the allegations of the said petition or 
report. 
1932 Code,, § 244; Civ. P. '22, § 202; 1912 (27) 763. 

§ 245. Report to circuit court — Upon proof of the allegations of the peti- 
tion the said court shall have power to order such parent or parents or 
person with whom the child resides to do and perform such duties in re- 



§ 245 Code of Civil Procedure Page 108 

gard to the support and control of the child as shall be lawful and right. 
In case it is found necessary to apply remedies beyond the constitutional 
powers of the probate court, the said court shall certify the fact to the 
court of common pleas, or to the court of general sessions, as the case may 
require, to act upon the same, and apply such remedies as may be lawful 
and right. 
1932 Code, § 245; Civ. P. '22, § 203; 1912 (27) 763. 

§ 246. May appoint custodian of minors. — If after due hearing the court 
shall assume the supervision, care or custody of the child, it shall require 
the parent or parents or persons with whom it resides, and in the discretion 
of the court, in addition to these or in lieu thereof, some suitable and proper 
person or persons to serve without compensation, and to be known as pro- 
bation officer or officers, to look after said child and to report to the court 
for as long a period and as often as the court shall require, as to the treat- 
ment and conduct of the said child; and the child shall report to said pro- 
bation officer or officers from time to time, as the court may prescribe; and 
said probation officer or officers shall at all times have the right and power 
to investigate the surroundings, conditions, treatment and conduct of 
the child, and report same to the court. 

1932 Code, § 246; Civ. P. '22, § 204; 1912 (27) 764. 

§ 247. May revoke and send to orphan asylum or reformatory. — If at any 
time the court shall find that the custody of the child should be taken from 
the parent or parents or person with whom it resides, it may bind over 
such child to some orphan asylum or other institution for the care of chil- 
dren, or to some responsible person or persons, in all cases to be first ap- 
proved by the court after due' investigation, who will agree in writing to 
care for the child in a humane manner and give it a reasonable amount of 
education, and to report to the court at least once a year as to the treatment 
and conduct of the child, or in the discretion of the court, the child, if 
colored, may be sent to the reformatory, now located in Lexington County; 
or if white, to the South Carolina Industrial School, now located in Flor- 
ence County: provided, that no boy or girl under the age of twelve (12) 
years shall be confined in any of the reformatories or industrial schools in 
this State. Provided, that the judge of probate for Hampton County is 
hereby prohibited from committing or sending children to orphanages as 
now provided by law, unless he shall secure the unanimous written ap- 
proval of the legislative delegation of Hampton County. 

1932 Code, § 247; Civ. P. '22, § 205; 1912 (27) 764; 1926 (34) 1728; 1933 (38) 66. 

§ 248. May remand for trial. — If it appear to the court that the child is 
incorrigibly criminal or has committed a crime which demands punishment 
rather than reformative discipline, the court shall remand it to the proper 
magistrate, municipal court or sessions court for trial and punishment. 
1932 Code, § 248; Civ. P. '22, § 206; 1912 (27) 764. 

§ 249. Form of arrest and incarceration. — Upon the arrest of any child 
less than eighteen years of age, the arrest of the said child shall be reported 
to the probate court by the officer making the arrest as speedily as possible 
for investigation and action under §§ 243 through 252. But if confinement be 
necessary before the case can be heard, the child shall not be incarcerated 



Page 109 Probate Court § 254 

in the same room with adult criminals, but in a separate room of detention, 
and where the county or municipal authorities have made or shall make 
suitable provision therefor, said room or rooms shall be outside the jail or 
guardhouse: provided, separate accommodations shall be provided for boys 
and girls and for white and colored. 
1932 Code, § 249; Civ. P. '22, § 207; 1912 (27) 764. 

§ 250. Penalty. — The neglect or refusal to obey the summons of the pro- 
bate court, or any lawful order made by it as here authorized shall be 
punishable as now authorized by law for the violation of the orders and 
decrees of said court. 
1932 Code, § 250; Civ. P. '22, § 208; 1912 (27) 765. 

§ 251. Appeals. — All orders made in pursuance of §§ 243 through 252 by 
the probate court shall be subject to review on appeal by the petitioner, 
the child or its parents or the person with whom it resides, or in case the 
child is charged with a crime beyond the jurisdiction of a magistrate by 
the State, in which last case it shall be the duty of the probate court 
promptly to certify, to the solicitor of the circuit, at his request, the testi- 
mony in the case, together with his findings and orders thereon. All appeals 
shall be to the judge of the circuit at chambers, and shall be heard on the 
original papers. The appeal shall act as a stay of proceedings in the probate 
court until the issue shall be heard and determined by the judge of the 
circuit court. An appeal shall lie from the circuit court, but such appeal 
shall not act as a supersedeas unless the circuit judge shall so order, stat- 
ing in the order that the issue raised is in serious doubt, and that if his 
decree is erroneous, its enforcement might work serious harm. 
1932 Code, § 251; Civ. P. '22, § 209; 1912 (27) 765. 

§ 252. Fees. — The costs and fees shall be the same as those in magistrate's 
courts for investigations, to be paid by the county in which the case is 
heard. 

1932 Code, § 252; Civ. P. '22, § 210; 1912 (27) 765. 

§ 253. Rights and authority of orphanage. — The said orphan asylum, and 
any orphanage, devoted to the relief of children who are destitute, aban- 
doned or being raised in immoral and vicious surroundings, shall have 
full care and control over any child committed to it, as provided in section 
247; subject always to the right of the courts to inquire into the propriety 
and sufficiency of the care and maintenance being provided for any such 
child, and to modify or to change the care and custody of any child, as the 
court may deem proper. 
1932 Code, § 253; Civ. P. '22, § 211; Civ. P. '12, § 78; 1911 (27) 135, 136. 

§ 254. Orphanage may entrust children to individual or family. — Any 

such orphanage to which a child has been committed, as provided in section 
253 and section 247, shall have the right to entrust any child, for its care, 
maintenance, rearing, education, and adoption to the care and custody of 
any individual or family, which it may deem proper, upon such guaran- 
tees as may be required by such orphanage. But this right shall be subject 
to the supervision, investigation and control of the courts of common pleas 



§ 254 Code of Civil Procedure Page 110 

of said State of South Carolina, upon application made to such courts. 
1932 Code, § 254; Civ. P. '22, § 212; Civ. P. '12, § 79; 1911 (27) 135, 136. 

§ 255. Jurisdiction of probate court as to certain minors in counties be- 
tween 85,000 and 100-000. 

(1) Minors — jurisdiction. — The probate court of counties having a popu- 
lation of between 85,000 and 100,000 according to the census of 1920, shall 
have exclusive original jurisdiction of any case of a child less than 16 years 
of age and of all other persons involved with or contributing to the depend- 
ency or delinquency of any child, residing in or being at this time within 
the said county or any city therein. 

(a) Who is delinquent or who violates any municipal or state law or ordi- 
nance or who is truant, unruly, wayward, or misdirected, or who is disobedi- 
ent to parents or beyond their control, or who is in danger of becoming so; or 

(b) Who is neglected, or who engages in any occupation, calling or exhi- 
bition, or is found in any place where a child is forbidden by law to be, and 
for permitting which an adult may be punished by law, or who is in such 
condition or surroundings or under such improper or insufficient guardian- 
ship or control as to endanger the morals, health or general welfare of such 
child; or 

(c) Who is dependent upon public support or who is destitute, homeless 
or abandoned, or whose custody is subject to controversy, or who is insane 
or feeble-minded or idiotic or epileptic or so far mentally deficient as to be 
unable to exercise proper control over his own affairs or whose mind is so 
deranged or impaired as to endanger the health, person or property of 
himself or others. 

When jurisdiction has been obtained in the case of any child, unless a 
court order shall be issued to the contrary, or unless the child be committed 
to an institution supported and controlled by the State, it shall continue for 
the purpose of this section during the minority of the child. The duty shall 
be constant upon the court to give each subject in its jurisdiction such 
oversight and control in the premises as will conduce to the welfare of such 
child and to the best interest of the State. 

(2) Children's courts. — There shall be established in each of said counties 
a separate part of the probate court for the hearing of cases coming within 
the provisions of this section. Such court shall be called the Children's 
Court of County. 

The judge of the probate court of each of said counties is hereby ap- 
pointed and authorized to act as judge of the children's court in the hearing 
of cases coming within the provisions of this section, in which case the child 
or children concerned therein reside in or at the time within such county, 
or any city therein. Proceedings in such cases may be initiated before such 
judge and in hearing such cases such judge shall comply with all the re- 
quirements and conform to the procedure provided in this section. 
(3) Meaning of terms. — The term "court" when used in this section without 
modification, shall refer to the children's court to be established in each 
county as hereinabove provided. The term "judge" when used in this sec- 
tion, shall refer to the judge of the probate court acting as judge of the 
children's court, or special judge. The term "child" or "minor" when used 
herein shall mean any person less than 16 years of age. 

(4) Procedure of court — records — use of evidence — section to be liberally 



Page 111 Probate Court § 255 

construed. — Children's cases are not to be heard according to the law of 
criminal procedure. Sessions of the court shall be held at such times and in 
such places within the county as the judge shall, from time to time, deter- 
mine. In the hearing of any case coming within the provisions of this sec- 
tion the general public shall be excluded and only such persons admitted 
thereto as have a direct interest in the case. Sessions of the children's court 
shall not be held in conjunction with any other business of any other court, 
and children's cases shall not be heard at the same time as those against 
adults. 

The court shall maintain a full and complete record of all cases brought 
before it, to be known as the children's record. All records may be with- 
held from indiscriminate public inspection in the discretion of the judge 
of the court, but such record shall be open to inspection by the parents, 
guardians, or other authorized representatives of the child concerned. No 
adjudication under the provisions of this section shall operate as a dis- 
qualification of any child for any public office, and no child shall be de- 
nominated a criminal by reason of such adjudication, nor shall such ad- 
judication be denominated a conviction. 

Any disposition of any child under this section or any evidence given in 
the proceedings of a children's court shall not be admitted in any subse- 
quent, civil or criminal proceedings against the child. 

This section shall be construed liberally and as remedial in character. The 
powers hereby conferred are intended to be general and for the purpose of 
effecting the beneficial purposes herein set forth. It is the intention of this 
section that in all proceedings under its provisions the court shall proceed 
upon the theory that a child under its jurisdiction is the ward of the State 
and is subject to the discipline and entitled to the protection which the 
court should give such child under the circumstances disclosed in the 
case and that as far as practicable the child shall be treated not as a crimi- 
nal but as a child in need of aid, encouragement and guidance. 

(5) Petition. — Any person having knowledge or information that a child 
is within the provisions of this section and subject to the jurisdiction of 
the children's court, may file with the court a petition verified by affidavit, 
stating the alleged facts which bring such child within said provision. The 
petition shall set forth the name and residence of the child and of the par- 
ents, or the name and residence of the person having the guardianship, 
custody, or supervision of such child, if the same is known or ascertained 
by the petitioner, or the petition shall state that they are unknown, if 
that be the fact. 

(6) Investigations — appearance may be required — expenses. — Upon the 
filing of the petition or upon the taking of a child into custody, the court 
may forthwith or after an investigation by a probation officer or other 
person, cause to be issued a summons signed by the judge or the clerk of 
the court directed to the child, unless such child has been taken into 
custody, and to the parents, or in case there is no parent, to the person 
having the guardianship, custody or supervision of the child, or the person 
with whom the child may be, requiring them to appear with the child at 
the place and time stated in the summons to show cause why the child 
should not be dealt with according to the provisions of this section. 

The judge may, in his discretion, authorize the payment of necessary 



§ 255 Code of Civil Procedure Page 112 

traveling expenses incurred by any witness or persons summoned or other- 
wise required to appear at the hearing of any case coming within the 
provisions of this section. 

(7) Disposition of child pending hearing. — If it appears from the peti- 
tion that the child is embraced within subdivision (a) of subsection one 
of this section, or is in such condition or surroundings that the welfare 
of the child requires that its custody be immediately assumed, the court 
may endorse or cause to be endorsed upon the summons a direction that 
the officer serving the same shall at once take such child into custody. 

In the case of any child who has been taken into custody or pending 
the final disposition of any case, the child may be released in the custody 
of a parent or other person having charge of the child or in the custody 
of a probation officer or other person appointed by the court to be brought 
before the court at the times designated. Any child embraced in this 
section may be admitted to bail as provided by law. When not released 
as herein provided such child, pending the hearing of the case, shall be 
detained in such place of detention as is hereinafter provided for. 

(8) Service of summons — procedure upon disobedience. — Service of 
summons shall be made personally by reading to and leaving with the 
person summoned a true copy thereof: provided, that if the court is satis- 
fied that reasonable but unsuccessful effort has been made to serve the 
summons personally upon any of the parties named therein, or if it shall 
appear to the satisfaction of the court that it is impracticable to serve a 
summons personally upon any of them, the court may make an order pro- 
viding for service of the summons by registered mail or by publication 
or otherwise in such manner as the judge shall determine. It shall be suf- 
ficient to confer jurisdiction if service is effected at any time before the 
time fixed in the summons for the return thereof, but the court, if re- 
quested by the child or a parent, or in case there is no parent, by the per- 
son having the guardianship, custody or supervision of the child, shall 
not proceed with the hearing earlier than three days after the service. 
Failure to serve a summons upon any person other than said child shall 
not impair the jurisdiction of the court to proceed in case arising under 
subdivision (2) subsection one of this section: provided, that for good cause 
shown the court shall have made an order dispensing with such service. 

If the person summoned as herein provided shall fail without reasonable 
cause to appear and abide the order of the court or bring the child, he may 
be proceeded against as for contempt of court. In case the summons can- 
not be served or the party served fails to obey the same, and in any case 
when it shall be made to appear to the court that such a summons will be 
ineffectual, or that the welfare of the child requires that he shall be 
brought forthwith into the custody of the court, a warrant may be issued 
on the order of the court either against the parent or guardian or other 
person having custody of the child or with whom the child may be or 
against the child himself. 

The sheriff or other lawful officer of the county in which the action is 
taken shall serve all papers as directed by the court, but the papers may 
be served by any person delegated by the court for that purpose. 

(9) Hearing of causes — adjudication, orders, etc. — Upon return of the sum- 
mons or other process or after any child has been taken into custody; at 
the time set for the hearing, the court shall proceed to hear the case in a 



Page 113 Probate Court § 255 

summary manner: provided, that the judge has been supplied with and has 
read a written report of the preliminary investigation made by the proba- 
tion officer of the court. 

The court may adjourn the hearing from time to time and inquire into 
the habits, surroundings, conditions, and tendencies of the child so as to 
enable the court to render such order or judgment as shall best conserve 
the welfare of the child and carry out the objects of this section. In all 
cases the nature of the proceedings shall be explained to the child and 
to the parents or the guardian or person having the custody or the super- 
vision of the child. At any stage of the case the court may, in its discre- 
tion, appoint any suitable person to be the guardian ad litem of the child 
for the purposes of the proceeding. 

At the discretion of the judge, he may appoint a woman to hear and 
decide individual or all cases of girls brought before the court. 

The court, if satisfied that the child is in need of the care, protection, or 
discipline of the State, may so adjudicate and may find the child to be de- 
linquent, neglected, or in need of more suitable guardianship. Thereupon 
the court may 

(a) Place the child on probation subject to the conditions provided 
hereinafter; or 

(b) Commit the child to the custody of a relative or other fit person of 
good moral character, subject, in the discretion of the court, to the super- 
vision of a probation officer and the further orders of the court; or 

(c) Commit the child to the custody of the state board of public welfare, 
to be placed by such board in a suitable family home and supervise therein; 
or 

(d) Commit the child to a suitable institution maintained by the State or 
any subdivision thereof, or to any suitable private institution, society or 
association incorporated under the laws of the State and approved by 
the state board of public welfare authorized to care for children or to 
place them in suitable family homes; or 

(e) Render such further judgment or make such further order of com- 
mitment as the court may be authorized by law to make in any given case. 

(f) If a child of fourteen years of age be charged with a felony, for 
which the punishment as now fixed by law cannot be more than ten years 
in prison, his case shall be investigated by the probation officer and the 
judge of the juvenile court as provided in this section, unless it appears 
to the judge of the juvenile court that the case should be brought to the 
attention of the judge of the circuit court, in which case the child shall 
be held in custody or bound to the next term of the circuit court as now 
provided by law. 

(10) Children not to be confined with adults — violation a misdemeanor — 
detention home. — No child coming within the provisions of this section 
shall be placed in any penal institution, jail, lock-up, or other places where 
adults convicted of crime are committed or are under arrest and charged 
with crime. 

Any person placing a child or accepting a child for placement in such 
penal insitution, jail, lock-up, or in any other place where adult criminals 
or adults charged with or arrested for a crime are confined shall be guilty 
of a misdemeanor. 

Provisions shall be made for the temporary detention of such children 



§ 255 Code of Civil Procedure Page 114 

in a detention home to be conducted as an agency of the court for the pur- 
pose of this section, or the judge may arrange for the boarding of such 
children temporarily in a private home or homes in the custody of some 
fit person or persons subject to the supervision of the court, or the judge 
may arrange with any incorporated institution, society or association 
maintaining a suitable place of detention for children for the use thereof 
as a temporary detention home. 

In case a detention home is established as an agency of the court it 
shall be furnished and carried on, so far as possible, as a family home in 
charge of a superintendent or matron who shall reside therein. The judge 
of the children's court may appoint a matron or superintendent or both, 
approved by the state board of public welfare, and other necessary em- 
ployees for such home in the same manner as probation officers are ap- 
pointed under this section, their salaries to be fixed by the county delega- 
tion on recommendation of the judge and paid in the same manner as 
the salaries of probation officers. The necessary expenses incurred in 
maintaining such detention home shall be a public charge. 

In case the judge shall arrange for the boarding of children temporarily 
detained in private homes, a reasonable sum for the board of such children, 
while temporarily detained in such homes, shall be paid by the county 
in which such child shall reside or may be found. 

In case the judge shall arrange with any incorporated institution, society 
or association for the use of a detention home maintained by such institu- 
tion, society or association, he shall enter an order which shall be effectual 
for that purpose and a reasonable sum shall be appropriated by the county 
commissioners for the compensation of such institution, society or asso- 
ciation for the care of children or found within the county who may be 
detained therein. 

(11) Probation officers. — The judge of the juvenile court in each of the 
above counties shall appoint a suitable person as chief probation officer, 
who shall serve under his direction. The appointment of such probation 
officer shall be approved by the state board of public welfare. 

The judge appointing any probation officer may discharge any proba- 
tion officer for cause. 

The salary of the chief probation officer of the county shall be $1,800.00 
per year, which salary shall be paid by warrants issued by the county 
supervisor from the general county funds: provided, that no person shall 
be paid a salary as probation officer in any county without a certificate 
of qualification from the state board of public welfare. 

The state board of public welfare shall establish rules and regulations 
pursuant to which appointments hereunder shall be made to the end that 
such appointments shall be based upon merit only. 

The appointment of a probation officer shall be in writing and one 
copy of the order of appointment shall be delivered to the officer so ap- 
pointed and the other filed in the office of the state board of public wel- 
fare. 

(12) Probation — terms — revocations. — When the court places any child 
or adult on probation as provided herein, it shall determine the conditions 
of probation which may be modified by the court at any time. A child 
shall remain on probation for such period as the court shall determine 



Page 115 Probate Court § 255 

during the minority of such child. An adult shall remain on probation 
for such period as the court shall determine, not to exceed five years. 
The conditions of probation shall be such as the court shall prescribe, and 
may include among other conditions, any or several of the following: 
that the probationer (a) shall indulge in no unlawful or injurious habits; 
(b) shall avoid places or persons of disreputable or harmful character; (c) 
shall report to the probation officer as directed by the court or probation 
officer; (d) shall permit the probation officer to visit him in a reasonable 
manner at his place of abode or elsewhere; (e) shall answer any reasonable 
inquiries on the part of the probation officer concerning his conduct or 
condition; (f) shall, if a child of compulsory school age, attend school reg- 
ularly; (g) shall, if an adult or a child who does not attend school, work 
faithfully at suitable employment; (h) shall remain or reside within a 
specified place or locality; (i) shall pay a fine in one or several sums; (j) 
shall make restitution or reparation to the aggrieved parties for actual 
damages or losses caused by an offense upon such conditions as the court 
shall determine; and (k) shall make payment for the support of any law- 
ful dependents as required by the court. Any person on probation may at 
any time be required to appear before the court, and in case of his failure 
to do so when properly notified by the probation officer, the court may 
issue a warrant for his arrest. In the case of a child on probation, if the 
court believes that the welfare of such child will thereby be promoted, 
the probation may be revoked at any time, and the court may make such 
other disposition of the child as it may have made at the time the child 
was placed on probation. An adult on probation who violates any of the 
conditions thereof may be arrested upon a warrant issued by the court 
and the court may impose any penalties which it might have imposed at 
the time the defendant was placed on probation. 

(13) Duties of probation officers. — It shall be the duty of a probation 
officer to make such investigations before, during or after the trial or 
hearing of any case coming before the court as the court shall direct and 
shall report thereon in writing. The probation officer shall take charge of 
any child before or after the trial or hearing when so directed by the court. 
The probation officer shall furnish to each person released on probation 
under his supervision a written statement of the conditions of probation, 
and shall instruct the probationer and other persons responsible for the 
welfare of the probationer regarding same, and shall endorse all the condi- 
tions of probation. Such officer shall keep informed concerning the con- 
duct and condition of each person on probation under his supervision by 
visiting, requiring of reports and in other ways and shall report upon the 
progress of each case under his supervision at least monthly to the court. 
Such officer shall use all suitable methods not inconsistent with the condi- 
tions imposed by the court to aid and encourage persons on probation and 
to bring about improvements in their conduct and condition. 

Such officer shall keep detailed records of his work. He shall keep 
accurate and complete accounts of all moneys collected from persons under 
his supervision; he shall give receipts therefor, and shall make at least 
monthly returns thereof; such officer shall make such report to the state 
board of public welfare as it may from time to time require, and shall 
perform such other duties as the court under whose direction such officer 



§ 255 Code of Civil Procedure Page 116 

is serving shall direct. Every probation officer shall have all the powers 
of a peace officer within the jurisdiction of the court which he serves. 
With the approval or under the direction of the judge of the court in which 
a probation officer is serving, such officer is authorized and empowered 
to set as probation officer over any person on probation transferred to 
his supervision from any other court, and may act as parole officer over 
any person released from a correctional institution when requested to do 
so by the authorities thereof and when authorized so to act by the judge 
of the court in which such probation officer is serving. 

(14) Support of children after commitment. — Whenever any child is com- 
mitted by the court to the custody of an institution, association, society or 
person other than his parent or guardian, compensation for the care of 
such child, when approved by the order of the court, shall be a charge 
upon the county, but the court may at the issuance and service of an order 
to show cause on the parent or other person having the duty under the 
law to support such child adjudge that such parent or other person shall 
pay in such manner as the court may direct, such sum as will cover in 
the whole or in part the support of such child, and wilful failure to pay 
such sum may be punished as a contempt of court. 

(15) Recognition of religious faiths. — In committing any child to an insti- 
tution or other custodial agency other than one supported and controlled 
by the State or in placing the child under any guardianship other than that 
of its natural guardians, the court shall, as far as practicable, select as 
the custodial agency an institution, society or association governed by per- 
sons of like religious faith as the parents of such child or an individual 
holding the same religious belief. 

(16) Modification of orders of court. — Any order or judgment made by 
the court in the case of any child shall be subject to such modification from 
time to time as the court may consider to be for the welfare of such child, 
except that a child committed to an institution supported and controlled 
by the State may be released or discharged only by the governing board 
or officer of such institution. Any parent or guardian, or if there be 
no parent or guardian the next friend of any child who has been or shall 
hereafter be committed by the court to the custody of an institution, other 
than an institution supported and controlled by the State, or to the custody 
of any association, society or person, or that institution, association, 
society or person has failed to act upon such application within a reasonable 
time. A copy of such petition shall at once be served by the court upon 
such institution, association, society, or person, whose duty it shall be to 
file a reply to the same within five days, if upon examination of the petition 
and reply the court is of the opinion that an investigation should be had; 
it may, upon due notice to all concerned, proceed to hear the facts and 
determine the question at issue, and may return such child to the custody 
of its parents or guardian or direct to such institution, association, society 
or person to make such other arrangements for the child's care and wel- 
fare as the circumstances of the case may require. Any child, while under 
the jurisdiction of the court, shall be subject to the visitation of the proba- 
tion officer or other agent of the court authorized to visit such child. 

(17) Appointment of guardian — custody of child. — Whenever in the 
course of proceeding instituted under this section it shall appear to the 



Page 117 Probate Court § 255 

court that the welfare of any child within the jurisdiction of the court will 
be promoted by the appointment of an individual as general guardian of 
its person, when such child is not committed to an institution or to any 
incorporated society or association, or by the appointment of an individual 
or corporation as general guardian of its property, the court shall have the 
jurisdiction to make such appointment, either upon the application of the 
child or of some relative or friend, or upon the court to be served upon 
the parent or parents of such child in such manner and for such time, 
prior to the hearing, as the court may deem reasonable. In any case aris- 
ing under this section the court may determine as between parents or 
others whether the father or mother or what person shall have the custody 
and direction of said child, subject to the provisions of the preceding sec- 
tion. 

(18) Physical examination of child — treatment of defectives. — The court, 
in its discretion, either before or after a hearing, may cause any child 
within its jurisdiction to be examined by one or more duly licensed physi- 
cians, who shall submit a written report thereon to the court. If it shall 
appear to the court that any child within the jurisdiction of the court is 
mentally defective, he may cause the child to be examined by two licensed 
physicians, and on the written statement of the two (2) examining physi- 
cians that it is their opinion that the child is mentally defective, feeble- 
minded, or epileptic, the court may commit such child to an institution 
authorized by law to receive and care for mentally defective, feeble-minded, 
or epileptic children, as the case may be. No child shall be committed 
to such institution unless the parent or parents or the guardian or custo- 
dian of such child, if such there be, are given an opportunity for a hearing. 
Whenever a child within the jurisdiction of the court and under the pro- 
visions of this section appears to the court to be in need of medical or 
surgical care a suitable order may be made for the treatment of such child 
in a hospital or otherwise, and the expense thereof, when approved by 
the court, shall be a charge upon the county or the appropriate subdivision 
thereof; but the court may adjudge that the person or persons having 
the duty under the law to support such child shall pay a part or all of 
the expenses of such treatment as provided in subsection fourteen (14) 
of this section. 

(19) Neglect of child a misdemeanor — separation of baby from mother 
— penalties for violation — adoption of children — procedure in bastardy — 
abandonment — orphanages — abduction — furnishing tobacco — furnish- 
ing weapons — leaving child confined alone — failure to pay minor for work. 
A parent, guardian or other person having the custody of a child who 
omits to exercise reasonable diligence in the care, protection, or control 
of such child, causing it to be adjudged delinquent, neglected or in need 
of the care, protection, or discipline of the State as provided in this section, 
or who permits such child to associate with vicious, immoral, or criminal 
persons, or to beg or solicit alms, or to be an habitual truant from school, 
or to enter any house of prostitution or assignation, or any place where 
gambling is carried on or to enter any place which may be injurious to the 
morals, health or general welfare of such child, and any such person or 
any other person who knowingly or willfully is responsible for, encour- 
ages, aids, cause or connives at or who knowingly or willfully does any 



§ 255 Code of Civil Procedure Page 118 

act to produce, promote or contribute to the condition which caused such 
child to be adjudged delinquent, neglected or in need of the care, protec- 
tion or discipline of the State, shall be guilty of a misdemeanor. 

It shall be unlawful for any person to separate or aid in separating 
any child under six months of age from its mother for the purpose of placing 
said child in a foster home or institution, or removing it from the State for 
such purpose, unless the consent in writing for such separation shall have 
been obtained from the judge of the children's court and county health 
officer of the county in which the mother resides, or of the county in 
which the child was born; and it shall be unlawful for any mother to sur- 
render her child for such purposes without first having obtained such con- 
sent. 

Any person violating this section shall, upon conviction, be fined not 
exceeding five hundred ($500.00) dollars, or one year's imprisonment, or 
both, in the discretion of the court. 

Persons desiring to adopt a minor may begin proceedings before the 
judge of the children's court, the parents or guardian or anyone having 
charge of such child becomes party to the proceeding, and with consent of 
such, the judge may sanction such adoption if the party seeking it seems 
suitable, after investigation by probation officer. Petitioner shall give 
bond for property, if any, in case child is orphan. Child inherits as natural 
children, and name of child may be changed to that of petitioner if allowed 
by clerk. Order of adoption may be revoked at any time by judge for 
cause. 

Warrants in bastardy shall be issued on voluntary complaint by mother 
or by county commissioners that child is likely to become a county ward. 
When issue of paternity is tried and found against defendant he shall be 
fined not more than ten ($10.00) dollars, shall pay the woman two hundred 
($200.00) dollars, and give bond that the child shall not become a public 
charge, and shall stand charged with the maintenance of the child as the 
court may order. Action must be brought within three years after birth. 
If parents subsequently marry the child becomes legitimate as if born in 
lawful wedlock. The putative father of any illegitimate child may apply 
by petition in writing to the children's court of the county in which the 
father may reside, praying that such child may be declared legitimate. 
And if it shall appear that the petitioner is reputed the father of the child, 
the court may thereupon declare and pronounce the child legitimate; 
and the clerk shall record the deed. If any person shall wilfully abandon 
his family without providing adequate support for his wife, and the chil- 
dren which he may have begotten upon her, he shall be guilty of a misde- 
meanor. 

If the fact of abandonment or any failure to provide adequate support 
for the wife and children shall be proved, or while living with such wife, 
neglect by the husband to provide for the adequate support of such wife or 
children shall be proved, then the fact that such husband neglects applying 
himself to some honest calling for the support of such wife or children 
and is found sauntering about endeavoring to maintain himself by gaming 
or other undue means or is a common frequenter of drinking houses, or is 
a known common drunkard, shall be presumptive evidence that such 
abandonment is wilful. 



Page 119 Probate Court § 255 

Upon any conviction for abandonment, any judge having jurisdiction 
thereof may, in his discretion, make such order as in his judgment shall 
best provide for the support as far as may be necessary, of the deserted 
wife or children, or both, from the property or labor of the defendant. 

If any husband while living with his wife shall wilfully neglect to pro- 
vide adequate support for such wife or children which he has begotten 
upon her, he shall be guilty of a misdemeanor. 

Every indigent child which may be placed in any orphanage, children's 
home or child-placing institution in South Carolina, which shall be an in- 
stitution existing under and by virtue of the laws of this State, shall be 
under the control of the authorities of such institution so long as under 
the rules and regulations of such institution the child is entitled to remain 
in the same. The authority of the institution shall be the same as that of 
a parent or guardian before the child was placed in the institution: provid- 
ed, that such authority shall extend only to the person of such child. 

It shall be unlawful for any person to entice or attempt to entice, per- 
suade, harbor or conceal, or in any manner induce any indigent child to 
leave any of the institutions hereinbefore mentioned without the knowl- 
edge or consent of the authorities of such institution: provided, this section 
shall not interfere with the mother's right to her child in case she becomes 
able to sustain her child; and the county commissioners in the county in 
which she resides shall have authority to recommend to the institution 
concerning the child. 

Any person or persons violating any of the provisions of this section 
shall be guilty of a misdemeanor, and, upon conviction, shall be confined 
or imprisoned, or both, in the discretion of the court. 

Anyone who shall abduct or conspire to abduct, or induce any child un- 
der fourteen years of age to leave parents, uncle, aunt, either brother or 
sister, or a school at which it resides, or, if an orphan, to leave guardian, 
is guilty of a felony and may be imprisoned not more than fifteen years. 

If any person shall sell, give away or otherwise dispose of directly or in- 
directly cigarettes or tobacco in the form of cigarettes or cut tobacco in any 
form or shape which may be used or intended to be used as a substitute 
for cigarettes to any minor under the age of eighteen years; or if any person 
shall aid, assist or abet any other person in selling such article to such 
minor, he shall be guilty of a misdemeanor, and, upon conviction, shall be 
punished by fine or imprisonment in the discretion of the court. 

If any person shall aid or assist any minor child under eighteen years 
old in obtaining the possession of cigarettes, or tobacco in any form used 
as cigarettes, by whatever name it may be called, he shall be guilty of a 
misdemeanor, and, upon conviction, shall be fined or imprisoned in the 
discretion of the court. 

It shall be the duty of every police officer, upon knowledge or informa- 
tion that any minor under eighteen years is or has been smoking any 
cigarettes, to inquire of any such minor the name of the person who sold 
or gave him such cigarettes or the substitute from which it was made, or 
who aided and abetted in effecting such gift or sale. Upon receiving this 
information from any such minor the officer shall forthwith cause a war- 
rant to be issued for the person giving or selling or aiding and abetting 
in the giving and selling of such cigarettes or the substance out of which 



§ 255 Code of Civil Procedure Page 120 

they were made, and have such person dealt with as the law directs. Any 
such minor who shall fail or refuse to give to any officer upon inquiry 
the name of the person selling or giving him such cigarette or the sub- 
stance out of which_it was made, shall be guilty of a misdemeanor. 

If any person shall knowingly sell, offer for sale, give, or in any way 
dispose of to a minor any pistol or pistol cartridge, brass knucks, bowie 
knife, dirk, loaded cane or sling shot, he shall be guilty of a misdemeanor. 
Any person being the parent or guardian of, or attending in loco parentis 
to any child under the age of twelve years who shall knowingly permit 
such child to have the possession or custody of, or use in any manner 
whatever any gun, pistol, or other dangerous firearm, whether such firearm 
be loaded or unloaded, or any person who shall knowingly furnish such 
child any firearm, shall be guilty of a misdemeanor, and, upon conviction, 
shall be fined not exceeding fifty dollars or imprisoned not exceeding 
thirty days. If any person shall leave any child of the age of seven years 
or less locked or otherwise confined in any dwelling, building or enclosure, 
and go away from such dwelling, building or enclosure, without leaving 
some person of the age of discretion in charge of the same, so as to expose 
the child to danger by fire, the person so offending shall be guilty of a 
misdemeanor, and shall be punished at the discretion of the court. 

Whenever any person, having a contract with any corporation, company, 
or person, for the manufacture or change of any raw material by the piece 
or pound, shall employ any minor to assist in the work upon the faith 
of and by color of such contract, with intent to cheat and defraud such 
minor, and, having secured the contract price, shall wilfully fail to pay 
the minor when he shall have performed his part of the contract work, 
whether done by the day or by the job, the person so offending shall be 
guilty of a misdemeanor, and, upon conviction, shall be fined not more 
than fifty dollars or imprisoned not more than thirty days. 

(20) Appeals. — An appeal may be taken from any judgment or order of 
the juvenile court to the superior court having jurisdiction in the county 
by the parent or, in case there be no parent, by the guardian, custodian 
or next friend of any child, or by any adult described in the two preceding 
subsections of this section whose case has been heard by the juvenile 
court. Such appeal shall be taken in the manner provided for appeals to 
the superior court: provided, that written notice of such appeal be filed 
with the clerk of court within five days after the issuance of the judgment 
or order of such court. 

(21) Pay of judge — probation officer. — The judge of the juvenile court 
shall be paid a reasonable compensation for his service, the amount to be 
determined by the county delegation and the amount thus determined by 
the county delegation shall be charged against the public funds of the 
county and such compensation shall be independent of, and in addition 
to, any compensation which may come to him as judge of the probate 
court. The county delegation shall also make such provision as is neces- 
sary for the salary of the chief probation officer and for the equipment 
and maintenance of the probation officer together with due provision for 
transportation of the chief probation officer over the county in the proper 
discharge of his or her duties. Provided, that the judge of probate of Spar- 
tanbug County, ex-officio judge of the juvenile court of the said county, 
shall not be paid any additional compensation for his services as judge of 



Page 121 Probate Court § 256 

the said court, but the compensation otherwise provided by law for him 
shall be deemed to cover his services in this capacity. 

(22) Officials to cooperate — reports from institutions. — It is hereby made 
the duty of every state, county or municipal official or department to 
render such assistance and co-operation within his or its jurisdiction or 
power as shall further the objects of this section. All institutions or other 
agencies to which any person coming within the provisions of this section 
may be sent are hereby required to give such information concerning such 
child to the court or to any other officer appointed by it as authorized to 
seek the co-operation of all societies, organizations or individuals to the end 
that the court may be assisted in every way in the discharge of its duties. 

(23) Procedure — forms. — The court shall have power to devise and pub- 
lish rules to regulate the procedure in cases coming within the provisions 
of this section and for the conduct of all probation and other officers of 
the court in such cases. The court shall devise and cause to be printed 
for public use such forms for records and for various petitions, orders, 
processes, and other papers in the cases coming within this section as shall 
meet the requirements thereof, and all expenses incurred in complying 
with the provisions of this section shall be a public charge. 

(24) Advisory board. — The judge of the juvenile court shall appoint no 
less than six and no more than twelve efficient, reputable citizens of both 
sexes to act upon what shall be known as the advisory board of the child- 
ren's court. The members of this board shall serve for an indefinite period 
of time and without financial compensation. The duties of this board 
shall be: to advise and to co-operate with the court and probation officer 
in all matters appertaining to the moral, legal, physical, and spiritual 
welfare of all children within the county and the cities thereof; to visit 
all private and public institutions wherein children are placed or com- 
mitted; and to report to the judge upon the same and to make such recom- 
mendations as they deem necessary. These reports to be made in writing and 
a copy of the same to be sent to the county delegation and to the state board 
of public welfare. This advisory board shall have the control and manage- 
ment of the detention home. This advisory board shall meet at least once a 
month with the judge of the juvenile court. There shall be a chairman, sec- 
retary and treasurer. The judge of the juvenile court shall act as honorary 
chairman. All proceedings of the advisory board shall be kept in writing. 

1932 Code, § 255; 1923 (33) 207; 1925 (34) 231; 1927 (35) 227; 1934 (38) 1261; 1939 
(41) 287. 

State board of public welfare referred to herein abolished by 1939 A & J R 127. 

§ 256. Children's court, Greenville County. — There is hereby established 
a children's court in Greenville County, South Carolina, which shall have 
jurisdiction concurrent with the circuit courts of any case of a child less 
than sixteen years of age, and of all other persons involved with or con- 
tributing to the dependency or delinquency of any child, residing in or 
being at the time within the said county, or any city therein. 

(a) Who is delinquent, or who violates any municipal or state law or 
ordinance, or who is truant, unruly, wayward or misdirected, or who is 
disobedient to parents or beyond their control, or who is in danger of be- 
coming so: or, 

(b) Who is neglected or who engages in any occupation, calling or exhi- 



§ 256 Code of Civil Procedure Page 122 

bition, or is found in any place where a child is forbidden by law to be, 
and for permitting which an adult may be punished by law, or who is in 
such condition or surroundings, or under such improper or insufficient 
guardianship or control as to endanger the morals, health or general wel- 
fare of such child: or, 

(c) Who is dependent upon public support, or who is destitute, homeless 
or abandoned, or whose custody is subject to controversy, or who is insane 
or feeble minded or idiotic or epileptic or so far mentally deficient as to 
be unable to exercise proper control over his own affairs, or whose mind 
is so deranged or impaired as to endanger the health, person or property 
of himself or others. 

When jurisdiction has been obtained in the case of any child, unless a 
court order shall be issued to the contrary, or unless the child be com- 
mitted to an institution supported and controlled by the State, it shall 
continue for the purpose of this section during the minority of the child. 
The duty shall be constant upon the court to give each subject in its juris- 
diction such oversight and control in the premises as will conduce to the 
welfare of such child and to the best interest of the State. 

(d) There shall be appointed by the delegation of Greenville County an 
advisory board of the children's court of Greenville County, which board 
shall consist of nine members, seven of whom shall be elected and appointed 
by the legislative delegation of Greenville County. The Senator from 
Greenville County and one member of the delegation of Greenville County 
chosen by the delegation shall serve as ex-officio members of the board 
of directors during their terms as members of the Legislature. The other 
seven members of the board shall be chosen from the citizens of Green- 
ville County who do not hold any elective public office. These seven 
members shall serve for a period of five years each or until their successors 
are appointed. One member of the first board to be appointed under this 
section shall be elected to serve for one year; two, for two years; one, for 
three years; one, for four years; two, for five years. Thereafter as the term 
of each member expires, the succeeding appointment shall be for a term 
of five years. 

The duties of said board shall be: to advise and to cooperate with the 
court and probation officer in all matters appertaining to the moral, legal, 
physical, and spiritual welfare of all children within the county and the 
cities thereof. 

This advisory board shall meet at least once a month with the judge of 
the juvenile court. There shall be a chairman, secretary and treasurer. 
All proceedings of the advisory board shall be kept in writing. 

(e) The children's court hereby established shall be held by a judge, who 
shall be appointed by the Governor, upon the recommendation of a major- 
ity of the advisory board of the court, and the judge shall hold his office 
for a term of one year and until his successor is duly appointed and quali- 
fied and whose compensation shall be such as the Greenville County dele- 
gation shall determine. 

All provisions of section 255 not in conflict with the provisions of this 
section shall obtain and be applicable in the said children's court. All 
appeals from the children's court established under the provisions of this 
section shall be made to the circuit courts of Greenville County. 

1932 Code. § 256; 1927 (35) 281; 1939 (41) 288. 



Page 123 



§ 256-1 



CHAPTER 4-A 
Courts of Domestic Relations 



ARTICLE 1 



Courts of Domestic Relations in Counties with City over 70,000 



Short title. 

Definitions. 

Established. 

Divisions of the court. 
256-6. Judge. 

Rules and regulations. 

Attendance of clerk and proba- 
tion officer. 

Clerk. 
. Duties of clerk of children's 

court. 
. Clerk of court. 

Probation officer. 

Duties of probation officer. 
256-14. Oaths. 

256-15. Receipts and disbursements. 
256-16. Investigations. 

Terms. 

Court quarters, furniture, sup- 
lies, etc. 

Attendance of children. 

Inspection of records. 

Court seal. 

County and municipal authori- 
ties cooperate. 

Enforce court orders and decrees. 

Appeals. 

Duties of county attorney. 

Jurisdiction of children's court. 

Institute proceedings with peti- 
tion. 

Judge direct summons. 

Service of process. 

Arrest of children. 
256-31. Procedure. 
256-32. Children testify 

under oath. 
256-33. Hearings. 
256-34. Arrests. 
256-35. Adjourn hearings. 
256-36. Effect of judgment, 

etc. 
256-37. Examine children. 
256-38. Modify and vacate 

judgments. 

Judge visit institutions. 

Concurrent jurisdiction with 

probate judge. 

Construction. 

Family court. 

Powers. 



256-1. 
256-2. 
256-3. 
256-4. 
256-5, 
256-7. 
256-8. 

256-9. 
256-10 

256-11 
256-12. 
256-13 



256-17 
256-18. 

256-19. 
256-20. 
256-21. 
256-22. 

256-23. 
256-24. 
256-25. 
256-26. 
256-27. 

256-28. 
256-29. 
256-30. 



256-39. 
256-40. 

256-41. 
256-42. 
256-43. 



256-44. 

256-45. 

256-46 

256-47. 

256-48. 
256-49 
256-50 
256-51 
256-52. 

256-53 

256-54 
256-55 

256-56. 

256-57 

256-58 
256-59. 
256-60 
256-61 
256-62 
256-63 
256-64 
256-65 
256-66 

256-67 



without being 256-68 



256-69 
256-70 
256-71 
256-72 
256-73 

256-74 
256-75 
256-76 

256-77 
256-78 

256-79 



confession, 



orders and 



Jurisdiction concurrent with cir- 
cuit court. 

Husband liable for support of 
wife and children. 
When husband liable for support 
or guilty of non-support. 
Petition for support of wife or 
child. 
Petition. 

Public officials cooperate. 
Notice to respondent. 
Compromise issues. 
Issue summons when parties can- 
not agree. 

Issuance and service of war- 
rants. 

Form of warrant. 
Service of summons and war- 
rant by petitioner. 
Certificate of order of protec- 
tion. 

Service of summons and pro- 
cess. 

Hear and determine issues. 
Hearings. 
Arrests. 
Counsel. 

Failure to support. 
Place on probation. 
Revoke probation. 
Admit to bail. 

Arrests when court not in ses- 
sion. 

Duty of magistrates as to cer- 
tain persons. 

Probation officer visit persons 
in jail. 

Give bond provide support. 
New bond. 
Default. 

Court decide if default exist. 
Use of funds forfeited or de- 
faulted. 

Relieve surety of liability. 
Order of liability ceased. 
Require new or additional 
security. 

Effect of other laws. 
Jurisdiction of other courts not 
affected. 
Invalidity. 



§ 256-1. Short title — applicable to counties with city over 70,000.— This ar- 
ticle shall be known as the 'Domestic Relations Court Act' and may be so 
cited and shall apply to all counties in this State containing a city having 



§ 256-1 Code of Civil Procedure Page 124 

a population of over 70,000, according to the official United States census. 
1936 (39) 1499; 1938 (40) 1539; 1941 (42) 52. 

§ 256-2. Definitions. — Certain words as used in this article have the fol- 
lowing meaning for the purposes thereof: 

(1) Court means the "domestic relations court of the county of " 

(2) Judge means the judge of the domestic relations court of the county. 

(3) The words part, division, clerk, probation officer, employee, officer, 
shall be construed as if followed by the words "of the domestic relations 
court of the county." 

(4) Surety means a person or corporation executing an undertaking or 
depositing cash in lieu thereof. 

(5) The person for whom support is asked shall be known as the peti- 
tioner. 

(6) The person legally chargeable with the support of a wife or child shall 
be known as the respondent. 

(7) Child, when pertaining to delinquent or neglected children, means a 
person actually or apparently under sixteen years of age. 

(8) Adult, when pertaining to delinquent or neglected children, means a 
person sixteen years of age or older. 

(9) Delinquent child means a child over seven and under sixteen years 
of age (a) who violates any law of the United States or of this State or any 
municipal ordinance, or who commits any act which if committed by an 
adult would be an offense punishable otherwise than by death or life im- 
prisonment; (b) who is incorrigible, ungovernable or habitually disobedient 
and beyond the control of his parents, guardian, custodian or other lawful 
authority; (c) who is habitually truant; (d) who, without just cause and 
without the consent of his parent, guardian or other custodian, deserts his 
home or place of abode; (e) who engages in any occupation which is in vio- 
lation of law; (f) who begs or who solicits alms or money in public places; 
(g) who associates with immoral or vicious persons; (h) who frequents any 
place the maintenance of which is in violation of law; (i) who habitually 
uses obscene or profane language; or (j) who so deports himself as wilfully 
to injure or endanger the morals or health of himself or others. 

(10) Juvenile delinquency is the commission by a child over seven and 
under the age of sixteen years of any of the offenses enumerated in the 
foregoing definition of a delinquent child. 

(11) Neglected child means a child under sixteen years of age (a) who is 
without proper guardianship; (b) who has been abandoned or deserted by 
either or both of its parents or by any other person or persons lawfully 
charged with its care and custody; (c) whose parent, guardian or person 
with whom the child lives, by reason of cruelty, mental incapacity, im- 
morality or depravity is unfit properly to care for such child; (d) whose 
parent or guardian has been sentenced to imprisonment for crime; (e) who 
is under unlawful or improper supervision, care, custody or restraint by 
any person; (f) who wanders about without lawful occupation or restraint, 
or who is unlawfully kept out of school; (g) whose parent, guardian or 
custodian neglects or refuses, when able to do so, to provide necessary 
medical, surgical, institutional or hospital care for such child; (h) who is 
found in any place the maintenance of which is in violation of law; (i) 



Page 125 Courts of Domestic Relations § 256-5 

who is in such condition of want or suffering or is under such improper 
guardianship or control as to injure or endanger the morals or health of 
himself or others. 

(12) Destitute child means a child who through no neglect on the part 
of his parent, guardian, or custodian is destitute or homeless, or in a state 
of want or suffering due to lack of food, clothing, shelter, or medical or 
surgical care. 

(13) Physically handicapped child means a person under twenty-one 
years of age who, by reason of a physical defect or infirmity, whether con- 
genital or acquired by accident, injury or disease, is or may be expected to 
be totally or partly incapacitated for education or for remunerative oc- 
cupation, but shall not include the deaf and blind. 

(14) The words place, placed, commitment, and committed include re- 
place, replaced, recommitment and recommitted respectively. 

1936 (39) 1499; 1937 (40) 91. 

§ 256-3. Established — inferior to circuit court — powers — jurisdiction. — 

There is hereby established in and for all counties in the State containing 
a city of over 70,000 population according to the official United States 
census, a court of domestic relations to be known as the 'Domestic Re- 
lations Court of the County of '. 

1936 (39) 1499; 1938 (40) 1539; 1941 (42) 52. 

§ 256-4. Divisions of the court. — The court shall comprise two divisions to 
be known as the "Children's Court" and the "Family Court", respectively. 
1936 (39) 1499. 

§ 256-5. Judge — appointment — practice law — salary. — The judge of such 
court shall be appointed by the concurrence of four of the following five 
officials, to wit: the resident judge of the the circuit in which such county 
lies, the circuit solicitor of said circuit, probate judge of the county, the 
recorder or judge of the police court of the city containing more than 70,000 
population and the judge of the county court or other court in said county 
inferior to the circuit court. The appointment shall be in writing and signed 
by the appointing officials and such written appointment so signed shall be 
and constitute the warrant of the judge of the domestic relations court of 
said county, and the Governor shall forthwith issue a commission to him 
upon receipt of notice of said appointment. No person shall be eligible to 
appointment as judge unless such person shall have been admitted to prac- 
tice as an attorney and counselor at law of the Supreme Court of the State 
of South Carolina at least ten years prior to the date of such appointment, 
and shall have resided in said county at least ten years. In making such 
appointments the said officials shall select persons who because of their 
character, personality, tact, patience and common sense are especially qual- 
ified for the work of the court. During his term of office he shall not engage 
directly or indirectly in any other business or profession but shall devote 
his entire time and capacity, so far as the public interest demands, to the 
duties of his office. During his term of office he shall not practice in any 
other court of the State, nor shall he hold any other public office, nor shall 
he act as referee or receiver. No judge, officer, or employee of the court shall 
demand nor receive for his own use any fees or perquisites of office. The 



§ 256-5 Code of Civil Procedure Page 126 

salary of the judge shall be $3,000.00 per annum, payable monthly as 
county officers are paid. 
1936 (39) 1499; 1941 (42) 52. 

§ 256-6. Judge — term — removable — vacancy. — The judge shall hold office 
for a term of seven years, and until his successor has been appointed and 
qualified, and he shall be removable for cause by the concurrence of four 
of the five appointing officials after a full hearing at which he shall be 
fully informed as to any charge against him and shall be entitled to be 
present and have counsel, and to offer evidence. When a vacancy occurs 
in the office of judge it shall be filled by appointment in the manner of 
the orginal appointment, as provided in § 256-5, for a term of seven years. 
1936 (39) 1499. 

§ 256-7. Judge make certain rules and regulations. — It shall be the duty 
of the judge to make rules and regulations governing the following sub- 
jects: 

1. Regarding practice and procedure in the court of his county: 

2. Regarding probation; 

3. Regarding the receipt and payment of funds for the support of wives 
or children. 

4. Regarding the conduct and control of officers and employees. Such 
rules shall be printed within a reasonable time after their adoption and 
copies shall be available for the public and, insofar as the same are not in 
conflict with existing provisions of law, and of this article, shall have the 
force of law. 

1936 (39) 1499. 

§ 256-8. Attendance of clerk and probation officer — court records — inves- 
tigations — subpoenas. — The judge shall prescribe the hours for the attend- 
ance of the clerk and probation officer. He shall cause to be established 
and supervised a system for keeping the records of the court and its vari- 
ous divisions. The judge shall on his own initiative or on complaint, cause 
to be investigated all matters pertaining to the court or to the officers or 
employees thereof, and shall take such steps as may be necessary or proper 
in respect thereto. He may take testimony under oath with regard to any 
matter concerning the court, and may issue or cause to be issued a sub- 
poena requiring witnesses to appear and testify and to produce books and 
papers in regard to all matters relevant to such inquiry. 
1936 (39) 1499. 

§ 256-9. Clerk — probation officers — constables. — The judge shall have 
control over the officers of the court, which shall be a clerk, a probation 
officer, a deputy probation officer and a constable. Such officers shall 
be appointed by the judge, and shall hold office during his pleasure, and 
any vacancy shall be filled in like manner. The salary of the clerk shall 
be fixed by the judge at a figure not exceeding fifteen hundred ($1500.00) 
dollars per annum, and shall be paid by the county treasurer in monthly 
installments. Before taking office, the clerk shall give a bond of five 
thousand ($5,000.00) dollars, conditioned upon the faithful performance of 
his duties. The salary of the probation officer shall likewise be fixed by 



Page 127 Courts of Domestic Relations § 256-10 

the judge at a figure not exceeding eighteen hundred ($1800.00) dollars 
per annum, and shall be paid by the county treasurer in monthly install- 
ments. Before taking office the probation officer shall give a bond of 
five thousand ($5,000.00) dollars, conditioned upon the faithful performance 
of his duties. The salary of the deputy probation officer shall likewise 
be fixed by the judge at a figure not exceeding twelve hundred ($1200.00) 
dollars per annum, and shall be paid by the county treasurer in monthly 
installments. Before taking office, the deputy probation officer shall 
give a bond of five thousand ($5,000.00) dollars, conditioned upon the faith- 
ful performance of his duties. The salary of the constable shall likewise be 
fixed by the judge, at a figure not exceeding fourteen hundred and forty 
($1440.00) dollars per annum, which shall include his automobile expenses. 
Before taking office, the constable shall be commissioned by Governor, 
and shall give a bond of two thousand ($2,000.00) dollars, conditioned upon 
the faithful performance of his duties. The constable shall have all rights, 
powers and authority, in connection with the service of summons and pro- 
cesses issued by said court and in connection with the arrest of any person 
or persons in the service of summons and processes by order of said court, 
now given by law to sheriffs and constables. The premiums on all of 
said bonds shall be paid by the county supervisor, as are the premiums on 
bonds required in the case of other county officers. 
1936 (39) 1499; 1938 (40) 1539; 1940 (41) 1862. 

§ 256-10. Duties of clerk of children's court. — The clerk of the children's 
court shall have the following duties, among others: 

(1) Records. He shall cause to be kept a complete and accurate record 
of all the proceedings in the various divisions of the court and of all 
money received and disbursed. 

(2) Reports. — He shall report in writing to the judge each month the 
number, character and disposition of the cases coming before the court 
in its various divisions and handled, the amounts of money received and 
disbursed by the court for support, and such other information as the 
judge may require. He shall keep or cause to be kept such records of 
children as shall be perscribed or approved by the judge, and shall make 
to the judge such statistical and other reports concerning children as he 
shall deem to be necessary or as the judge shall require. 

(3) Annual Report; Budget. It shall be his duty to prepare and submit 
to the judge prior to January tenth of each year the annual report of the 
court for the preceding calendar year. It shall also be his duty on or before 
the tenth day of January to prepare and submit to the judge the tenta- 
tive budget for the expenses of the court for the ensuing calendar year. 

(4) Expenditure of Funds. He shall be responsible for seeing that no 
funds appropriated for the court are illegally or improperly expended. 

(5) Seal. He shall be the custodian of the court's records and official 
papers and of the official seal of the court, and shall affix it to certificates 
of the court's records and to such other papers as the judge may require. 

(6) Act as Clerk of Court. He shall have all the powers of a clerk of 
court and shall act as such in the work of the court. 

(7) Bonds. — He shall cause to be kept an accurate record of all bonds 
furnished, both for bail and for support, which shall include the names of 
sureties, of the person on whose behalf given, the date and the amount, and 



§ 256-14 Code of Civil Procedure Page 128 

such other information as may be required by the director of administra- 
tion. 

(8) Bureau of Information. He shall maintain a bureau of information 
for the public and shall promptly report to the judge the nature and cir- 
cumstances of all complaints made relative to the court or its officers 
or employees. 
1936 (39) 1499. 

§ 256-11. Clerk of court — prepare papers — handle funds — report. — Peti- 
tions for support and complaints for non-support and petitions relating 
to a child and all legal process shall be prepared by the clerk of court and 
shall be filed by him. He shall have custody of all bonds and cash de- 
posited, and when such funds are to be applied for the benefit of a peti- 
tioner he shall turn them over to the support bureau for that purpose. 
He shall report in writing to the judge at least once in each month the 
fines imposed and received. The clerk shall pay over the amount of all 
fines received by him to the county treasurer on or before the fifth day 
of each month. 
1936 (39) 1499. 

§ 256-12. Probation officer. — The judge shall appoint a probation officer 
who shall report to him at frequent intervals on the conduct of probation 
in the various divisions of the court. Subject to the direction of the judge, 
he shall have charge of the probation work of the court. He shall for- 
mulate uniform methods for the probation work of the court and develop 
processes in the technique of casework, including investigation, interview- 
ing, use of records, analysis of information, diagnosis, plan of treatment, 
correlation of effort by individuals and agencies, and methods of influenc- 
ing human behavior. 
1936 (39) 1499. 

§ 256-13. Duties of probation officer. — It shall be the duty of the proba- 
tion officer, unless the court otherwise directs, to make a prompt and 
thorough investigation, before, during or after hearing, concerning the 
history, character and circumstances of any case assigned to him. His reports 
shall be submitted to the court and they shall include such facts as may 
aid the court in correcting conditions responsible for the appearance of 
the case in court and in planning for the future welfare of the parties 
involved. Every probation officer shall keep himself informed as to the 
conduct and condition of all probationers under his supervision and shall 
visit them as often as may be necessary, and shall report thereon to the 
court in such manner and at such times as the court shall require. He 
shall visit the petitioner and the home at such times as the rules of the 
court shall prescribe. It shall be the duty of each probation officer as- 
signed to the work of supervision in the family court to secure the prompt 
payment by the persons under his supervision of such sums as have been 
ordered by the court to be paid for support, and to report promptly to the 
court any failure by the probationer to make such payments, or to comply 
in any important respect with the conditions of his probation. The pro- 
bation officer shall keep accurate accounts of all moneys and other articles 
collected or taken from the persons under his supervision and shall 



Page 129 Courts of Domestic Relations § 256-16 

make a report of the same to the court. He shall keep an accurate record 
of all money received by him from his probationers in the family court, 
or on their behalf, and shall report this in detail each week to the court. 
He shall report promptly to the court any conduct of the probationer 
or other circumstances that in his judgment is in violation of the condi- 
tions of probation or that would lead the court to modify those conditions 
or revoke the probation. The probation officer shall be vested with the 
power and authority conferred by law upon constables. 
1936 (39) 1499. 

§ 256-14. Oaths — acknowledgments. — The judge and clerk shall have 
power to administer oaths and take acknowledgments. 
1936 (39) 1499. 

§ 256-15. Receipts and disbursements. — Each day at the close of the day 
the clerk shall deposit in a bank approved by the court all funds then on 
hand. He shall keep a careful and accurate record of all money received 
and paid out in accordance with the rules of the court. He shall cause 
to be given or sent to each person making payments to such bureau a re- 
ceipt upon a printed form to be signed in the name of the court with his 
name signed thereto, with a statement of the amount of money received 
and from whom and on whose behalf. Each such receipt shall carry a 
serial number, which shall also appear upon a carbon copy on an identical 
form, on which the information filled in on the original shall appear. He 
shall cause to be promptly transmitted to the probation officer in charge 
of each case information with regard to all payments made relative thereto 
and shall report specifically to such officer all instances where required 
payments have not been made within a two weeks' period. No such car- 
bon copy shall for any reason be destroyed. It shall be the duty of the 
judge at least once a month to carefully examine and check over these car- 
bon copies and the records of all money received and paid out in said 
part. 

1936 (39) 1499. 

§ 256-16. Probation officer make investigations — supervise probationers. 

— It shall be the duty of the probation officer to interview petitioners for 
support, to obtain from them and from others, as far as possible, all in- 
formation necessary to a constructive plan of treatment and the proper 
handling of their cases by the court, to obtain from the appropriate de- 
partments of government and from private agencies such information with 
regard to the previous records of such persons and their families as may 
be appropriate, and to visit such petitioners and their homes, as well as 
such members of their families as may be necessary. He shall promptly 
report to the court in writing the results of its investigations and without 
attempt to color the facts or influence the court's decision. He shall 
supervise persons placed on probation by the court and to see that the 
conditions of probation are carried out by the probationer, and to aid by 
counsel and advice, and in other ways, in maintaining the families under 
their care as social units, and to bring about harmonious relations in the 
home. 
1936 (39) 1499. 

I.-S.C.-5 



§ 256-17 Code of Civil Procedure Page 130 

§ 256-17. Terms of court — hours — probate judge act in absence of judge 
of children's court — vacation for judge. — The children's court shall be open 
and sessions of court shall be held every day in the year except Sundays 
and legal holidays. The family court shall also be open and sessions of 
court shall be held every day in the year except Sundays and legal holi- 
days. In the absence of the judge, on vacation, or because of illness, the 
duties of the judge of the children's court shall be discharged by the judge 
of probate, in the probate court. The court shall be open and ready for 
the transaction of business on all such days at ten o'clock in the morning, 
and shall not close before two o'clock in the afternoon on week days, nor 
before one o'clock in the afternoon on Saturdays. The judge shall be in 
actual attendance thereon during such hours, except for a reasonable 
recess, and shall be entitled to a vacation of one month in each year to be 
taken at such time or times as he may determine, during which time 
he shall visit the various insitutions to which delinquent and neglected 
children have been committed. 
1936 (39) 1499; 1937 (40) 91; 1939 (41) 98; 1940 (41) 1862; 1941 (42) 51. 

§ 256-18. Court quarters, furniture, supplies, etc. — The court established 
by this article shall occupy and use such quarters as shall be assigned by 
the clerk of the court of common pleas and general sessions of the county 
in the court house for the court established by this article. All furniture, 
equipment, supplies and other property or service in the custody or use 
of or allotted to said courts shall be provided by the county supervisor. 
Until quarters shall have been assigned in the court house, as aforesaid, 
the judge, with the written approval of the Senator and a majority of the 
members of the House of the county, shall arrange to secure temporary 
quarters for the court as convenient to the court house as may be prac- 
ticable, the expense to be defrayed from the contingent fund provided for 
the court. The stationery and printing of the court shall also be defrayed 
from such contingent fund. 
1936 (39) 1499. 

§ 256-19. Attendance of children at court. — So far as possible a waiting 
room shall be provided for the care of children brought to court by peti- 
tioners. Unless directed by the court, children shall not be permitted in 
the court room, except where the proceedings are in relation to the child. 
1936 (39) 1499. 

§ 256-20. Inspection of records. — The records of any case in the children's 
court, by order of the court, may be withheld from indiscriminate public 
inspection in the discretion of the judge, but such records shall be open 
to inspection by the parent, guardian, next friend or attorney of the child. 
Any duly authorized agency, association, society or institution to which a 
child is committed may cause an inspection of the record of investigation to 
be had, and may in the discretion of the court obtain a copy of the whole or 
a part of such record. 
1936 (39) 1499. 

§ 256-21. Seal. — The court shall have an official seal in such form as may 
be prescribed by the judge. 
1936 (39) 1499. 



Page 131 Courts of Domestic Relations § 256-24 

i 256-22. County and municipal authorities cooperate — institutions report 
on children — request other agencies cooperate. — It is hereby made the duty 
of every county and municipal officer and employee to render such as- 
sistance and co-operation as shall be within his jurisdictional power, to 
further the objects of this article. All institutions or other agencies to 
which any child shall be committed are hereby required to give to the 
court or its representative such information concerning such child as the 
court or a justice thereof may require. The court is authorized to seek the 
cooperation of all societies or organizations, public or private, having 
for their object the protection or aid of children, to the end that the court 
may be assisted in every reasonable way to give the children within its 
jurisdiction such care, protection and assistance as will best enhance their 
welfare. 
1936 (39) 1499. 

§ 256-23. Enforce court orders and decrees. — All of the provisions of the 
state law relating to civil and criminal contempts shall apply to this court, 
and the court and the judge thereof shall have all the power and authority 
of the circuit court, or a judge thereof, to enforce its orders and decrees 
by punishment for contempt, as in the equitable jurisdiction of the circuit 
courts of South Carolina. 
1936 (39) 1499. 

§ 256-24. Appeals. — An appeal may be taken to the court of common 
pleas of the county by any party to the proceeding from any final order 
or judgment of the court, by the service within five (5) days after the 
entry of said order or judgment, of written notice of appeal, containing 
the grounds of alleged error. All notices of or in connection with appeals 
shall be served upon the judge and upon the attorney for the county board 
of commissioners as well as upon the appellee or his attorney. In all pro- 
ceedings in which the county is participating the attorney for the county 
board of commissioners shall conduct the appeal to final termination, but 
the consent or approval of the attorney for the county board of commis- 
sioners to other appeals shall not be necessary. 

When notice of appeal is served as herein provided, the judge shall 
within ten (10) days make return to the court of common pleas of the 
county upon the appeal concisely setting forth the pertinent and material 
facts, the grounds of the decision appealed from, copies of all papers filed 
in the record, and a copy of such testimony as may have been taken, or a 
memorandum of evidence, if testimony was not taken in the matter. The 
return shall be verified on oath by the judge. 

In family court cases the appeal shall not operate as a stay of proceed- 
ings in respect to the order and no stay shall be granted, unless the ap- 
pellant deposits with the clerk of court from which the appeal is taken 
the sum of $100.00 in cash, which may be applied to the support of the 
petitioner during said appeal, or unless he gives sufficient surety by a 
written undertaking approved by the judge of the court, that during the 
pendency of such appeal he will pay the amount directed to be paid to 
the family court for the support of the petitioner. Failure to make such 
payments automatically vacates such stay. 

The court of common pleas may reverse or affirm wholly or partly, or 



§ 256-24 Code of Civil Procedure Page 132 

may modify the decisions brought up for review. If a new trial is ordered 
it shall be had in the domestic relations court. All appeals under this 
article shall have preference in the court of common pleas over all other 
civil actions and proceedings. 
1936 (39) 1499. 

§ 256-25. Duties of county attorney. — The county attorney shall act as 
counsel for the court, and, by direction of the court, shall represent either 
party to a controversy who has no counsel, in cases where the opposing 
party is represented by counsel, and shall take charge of all legal proceed- 
ings on behalf of the court where the court's action is under review. 
1936 (39) 1499; 1940 (41) 1862. 

§ 256-26. Jurisdiction of children's court. 

(1) Children. — The children's court in each county shall have exclusive 
original jurisdiction within such county to hear and determine all cases or 
proceedings involving the hearing, trial, parole, probation, remand or 
commitment of children actually or apparently under the age of sixteen 
years, or who were under the age of sixteen years when the act or offense is 
alleged to have been committed, or the right of action in such case or pro- 
ceeding accrued, who are, or who are alleged to be (a) delinquent, (b) phy- 
sically handicapped, (c) material witnesses, (d) mental defectives, (e) neg- 
lected, and shall also have jurisdiction to appoint guardians of the person 
of such children and to grant orders for the adoption of such children. Such 
court shall also have jurisdiction in such proceedings to determine the ques- 
tion of the rightful custody of such children if their custody is subject to 
controversy and insofar as such custody or controversy relates to their im- 
mediate care. The court may refer to any magistrate having jurisdiction 
any delinquent child who it may conclude should be tried in the criminal 
courts. 

(1-a) Persons make parties — authority over. — In furtherance of the com- 
plete disposition of cases under the jurisdiction of the children's court and 
for the protection of children to whom this article is applicable, and in 
connection with the removal of the case or cases of any delinquency or 
neglect found by the court to exist in any case, all or any of said purposes, 
the children's court shall have the power and authority to bring in and 
make parties to any proceedings pending in said court any person or per- 
sons (a) who are charged with or alleged to be causing or contributing to 
the delinquency or neglect of any child or children, actually or apparently 
under the age of sixteen (16) years in violation of law or of the provisions 
of this article, or (b) whose presence as a party to the proceedings may be 
found necessary to a complete determination of the issue therein, or the 
release or remedy which should be granted or decreed therein; and the 
children's court shall have the power to enjoin and restrain such person 
from causing or contributing to the delinquency or neglect of any such 
child or children, and shall have the power to punish the violation of any 
such injunction or restraining order under the provisions of sub-section 
3 of this section. 

(2) Adults; liability for support of children. — The children's court shall 
also have jurisdiction whenever the issues involving a delinquent or neg- 
lected child are before the court, to inquire into and determine the lia- 



Page 133 Courts of Domestic Relations § 256-27 

bility of any parent or other person who is charged with failure to provide 
for the maintenance of any such child, when such person is required by 
law to provide for its care and maintenance; and to inquire into and deter- 
mine the liability of the parent of any child committed by the court, pur- 
suant to any provision of law to a duly authorized association, agency, 
society, or institution, and the liability of any other person required by 
law to support or maintain any such child; and if judgment be rendered 
affirming the liability of any such parent or other person to pay for the 
maintenance, in whole or in part, of such child, the court may by order 
require of such parent or other person the weekly or monthly payment to- 
ward the maintenance or support of any such child such sum of money 
as the court shall deem fair and equitable, and may specify in the order 
the place where and the person, officer or agency to whom such payments 
shall be made; and if the sum paid shall be for the maintenance of a child 
committed by the court it shall be credited to the agency, association, 
society or institution having custody of the child, or to the city, or county 
having the burden of its care and maintenance. Proceedings under this 
subdivision may be instituted by a duly authorized agency, association, 
society or institution or by an interested party or on the court's own 
motion. The court may issue a summons or in a proper case a warrant 
or other process to secure or compel the attendance of any necessary per- 
son, and such order, when made, shall be enforceable and subject to exe- 
cution as are orders and injunctions of courts of equity in this State. 

(3) Enforce orders. — The children's court shall, except as herein other- 
wise provided, have exclusive original jurisdiction in all cases against 
persons charged with a failure to obey any order of the court made pur- 
suant to the provisions of this section, and any violation of an order made 
pursuant to the provisions of this section shall be punishable as a contempt 
of court. 

1936 (39) 1499; 1937 (40) 91; 1940 (41) 1862. 

§ 256-27. Institute proceedings with petition — petitioners — title. — The 

parent or custodian of any child, an official of a child welfare board, any 
public official charged by law with the care of the poor, the recognized 
agents of any duly authorized agency, association, society or institution, 
or any person having knowledge or information of a nature which con- 
vinces such person that a child is neglected or delinquent, or that any child, 
by reason of its condition, environment or of its own acts is, in accordance 
with the provisions of this article, subject to the jurisdiction of the child- 
ren's court, or any person who has suffered injury through the delinquency 
of such child or is concerned in its guardianship or adoption, may institute 
a proceeding respecting such child by filing with the court a petition, 
verified by affidavit, which petition shall state such facts as will bring 
the child within the jurisdiction of the court. The petition shall include the 
name and street address of the child and of its parents or other person or 
persons having the guardianship, custody, control or supervision of such 
child, or the person with whom it is domiciled, if the same be known to 
the petitioner, or shall set forth that they are unknown if that be the fact; 
and the petition shall conclude with a prayer to the court for such action 
or relief as the law provides. The title of the proceeding shall be "Domes- 



§ 256-27 Code of Civil Procedure Page 134 

tic Relations Court of the County of Children's Court, 

In the matter of a child under the age of sixteen years." 

1936 ( 39) 1499. 

§ 256-28. Judge direct summons — witnesses. — Upon the filing of a petition 
the judge may, either forthwith or after an investgation which he may 
direct to be made, cause a summons to be issued, which shall be signed 
by him or by the clerk of the court, requiring the child and its parent, 
guardian, custodian or other person or persons having control of 'such 
child, or with whom it is domiciled, to appear at the court at a time and 
place named to show cause why such child should not be dealt with accord- 
ing to law. The court may also issue a subpoena or in a proper case a war- 
rant or other process to secure or compel the attendance of any person 
whose testimony or presence at a hearing or proceeding is deemed by the 
court to be necessary; and any person who willfully fails or refuses to obey 
any process of the court shall be guilty of a contempt of court, and, may be 
punished therefor as in the courts of equity in this State. 
1936 (39) 1499. 

§ 256-29. Service of summons, warrants and other process. — Service of a 
summons shall be made by delivery of a true copy thereof to the person 
summoned. If after reasonable effort personal service shall not have 
been made the court or a justice thereof at any stage of the proceedings 
may make an order providing for substituted service of the summons in 
the manner provided for substituted service in civil process in courts of 
record. The service of a summons must be made at least twenty-four 
hours before the time stated therein for such appearance; but if so re- 
quested by a parent, guardian, or other person having the custody or 
control of the child, the judge shall not proceed with the hearing or pro- 
ceeding earlier than three days after such service. In case the summons 
cannot be served, or the person or persons served fail to obey the same, 
and in any case when it shall be made to appear to the court that a sum- 
mons will be ineffectual, or that the welfare of a child requires that such 
child or its parent, guardian or other person having its custody or control, 
shall be brought forthwith into the custody of the court, a warrant may 
be issued by the court either against the child, the parent, guardian or 
other person having its custody or control. All papers, warrants or other 
process shall be served by any peace officer of the county in which the 
court is located, when such officer is directed so to do by the court or a 
justice thereof. 
1936 (39) 1499. 

§ 256-30. Arrest of children — duty of officers — duty of magistrates as to 

certain children — confinement. 

(1) Arrest of children. — Whenever any child is arrested, with or without 
a warrant, it shall be the duty of the officer having such child in charge 
immediately to notify the parent, guardian or other person responsible 
for its custody or control, or the person with whom such child is domi- 
ciled,-that such child has been taken into custody; and forthwith and with 
all convenienent speed the officer shall directly and without his being 
first taken to the police station house take such child to the children's 
court located in the county in which the offense, if any, was committed, 



Page 135 Courts of Domestic Relations § 256-34 

if the court is in session, and if not in session then to the police station 
or county jail and the officer making arrest shall immediately make and 
file a petition as hereinbefore provided. But nothing herein contained 
shall be held to prohibit the acceptance of bail or recognizance as pro- 
vided by law. 

(2) Duty of magistrate as to certain children. — When a child alleged to 
be delinquent or neglected is brought before any magistrate or other 
court for hearing or trial, and it is found that such child is actually or 
apparently under the age of sixteen years, such magistrate or court shall 
immediately, by order transfer the case or proceeding to the children's 
court located in the county having jurisdiction of the case, and shall direct 
that the child shall forthwith be delivered to this court, if it be in session, 
and if it is not in session, then to the police station or county jail. 

(3) Confinement of children. — Where a child is taken to the police station 
or the county jail, such child shall be kept separate and apart from adults 
confined therein. 

1936 (39) 1499. 

§ 256-31. Procedure when not prescribed. — Where the method of procedure 
in a case, action or proceeding in which the court has jurisdiction is not 
prescribed by this article, such procedure shall be the same as provided 
by law for other courts exercising like jurisdiction, or by the rules adopted 
by the court, and the court shall have such jurisdiction as may be necessary 
to enable it to carry out and enforce the provisions of this article. 
1936 (39) 1499. 

§ 256-32. Children testify without being under oath. — In taking the testi- 
mony of children the court may, in its discretion, dispense with the for- 
mality of placing them under oath. 
1936 (39) 1499. 

§ 256-33. Hearings. — All cases in which children are directly involved 
shall be heard separately and apart from the trial or hearing of cases 
against adults, except where adults and children are involved in the same 
case, which cases shall be heard as may be provided by the rules of the 
court. The court shall have power upon the hearing of any case involv- 
ing any child, to exclude the general public from the room wherein the 
said hearing is held, admitting thereto only such persons as may have a 
direct interest in the case. 
1936 (39) 1499. 

§ 256-34. Arrests — discharge — release. — If it appears from the petition 
that the interests of justice require the immediate apprehension of a child 
the judge may endorse or cause to be endorsed upon the summons an 
order that the officer serving the same shall at once take such child into 
custody, or he may issue a warrant as provided by law. Any child in 
custody may be discharged by the court, or pending the final disposition 
of any case the child affected may be released on bail or paroled in the 
custody of a parent, guardian, probation officer or other person and the 
judge may direct that such child shall be brought before the court at a 
time specified. 
1936 (39) 1499. 



§ 256-35 Code of Civil Procedure Page 136 

§ 256-35. Adjourn hearings — guardian ad litem — judgment. — Upon the re- 
turn of the summons or other process or after any child has been taken 
into custody, and at the time set for the hearing, the court shall proceed 
to hear and determine the case. The court from time to time may adjourn 
the hearing and inquire into the habits, surroundings, conditions and ten- 
dencies of the child so as to enable the court to render such order or judg- 
ment as shall best conserve the welfare of the child and carry out the 
objects of this article. During such adjournments the child may be 
placed in the custody of a parent, guardian, relative or other fit person and 
under the supervision of a probation officer, if the court so directs. At 
any stage of a proceeding the judge may, in his discretion, appoint any 
suitable person to be the guardian ad litem of the child for the purposes 
of the proceeding. 

The court, if satisfied by competent evidence, may adjudicate the child 
to be delinquent or neglected, and in such case shall render judgment as 
follows: 

(a) Suspend sentence during good behavior. 

(b) Place the child, if delinquent, on probation or, if neglected, under 
supervision to remain in his own home or in the custody of a relative or 
other fit person, subject, however, to the supervision of the probation of- 
ficer and to the further orders of the court; 

(c) Commit the child to the care and custody of a suitable institution 
maintained by the State or any sub-division thereof, including the re- 
formatories of South Carolina, or to the care and custody of a duly auth- 
orized association, agency, society, or institution, including any orphan 
home or any hospital or any private home approved by the court in the 
city or county of Charleston. 

(d) Impose a fine in a sum not to exceed two hundred dollars, or in the 
alternative to remand, commit or place on probation as herein provided; 

(e) Continue the proceeding and place the child in its own home or in 
the custody of a relative or other suitable person, or a duly authorized as- 
sociation, agency, society or institution, for a certain designated period 
subject to the orders of the court; 

(f) Discharge the child, if a neglected child, to the custody of such of- 
ficer, board or department as may be authorized to receive children as 
public charges, who shall provide for such child as in the case of a destitute 
child or as otherwise authorized by law; or 

(g) Render such other and further judgment or make such other order or 
commitment as the court may be authorized by law to make. 

A child may be placed and continued on probation for such time as the 
court or justice may deem proper, but such period shall not be longer 
than five years, nor shall it continue in any case beyond the twenty-first 
birthday of any child. Such probationary period, however, may extend be- 
yond the time such child attains the age of sixteen years. In case of a 
violation of the probationary condition, or of the condition of a suspended 
sentence, the court may impose on the probationer any penalty or penal- 
ties which it might have imposed before placing him on probation, and in 
any case where the court shall have adjudged a child to be delinquent, or 
neglected, and shall have placed him on probation subject to the super- 



Page 137 Courts of Domestic Relations § 256-38 

vision of a probation officer, the court in the manner aforesaid may com- 
mit such child for a violation of the conditions of his probation at any- 
time during such probationary period irrespective of his age at the time 
of such violation. 
1936 (39) 1499; 1940 (41) 1862. 

§ 256-36. Effect of judgment, confession, etc. — No adjudication under the 
provisions of this article shall operate as as a disqualification of any child 
subsequently to hold office or as a forfeiture of any right or privilege or 
to receive any license granted by public authority; and no child shall be 
denominated a criminal by reason of such adjudication, nor shall such 
adjudication be denominated a conviction. Neither the fact that a child 
has been before the children's court for hearing nor any confession, admis- 
sion or statement made by him to the court or to any officer thereof while 
he is under the age of sixteen years shall ever be admissible as evidence 
against him or his interest in any other court. Nothing in this section 
contained, however, shall be construed to prevent any court, in imposing 
sentence upon an adult after conviction, from receiving and considering 
the records and information of file in the children's court with reference 
to such adult when he was a child. 
1936 (39) 1499. 

§ 256-37. Examine children — medical and surgical care. — The court in its 
discretion, either before, during or after a hearing, may cause any child 
within its jurisdiction to be examined by a physician duly licensed as such 
by the State of South Carolina or by a psychologist or psychiatrist, appoint- 
ed or designated for the purpose by the court. If it shall appear to the 
court that any child within its jurisdiction is mentally defective, the court 
may cause such child to be examined and if such child shall be found to be 
mentally defective, the court may commit such child. In the case of a 
physically handicapped child the court may issue an order for his (a) 
maintenance, (b) surgical, (c) medical or therapeutic treatment, (d) hospital 
care, (e) appliances and devices, (f) home teaching, (g) transportation, (h) 
education, (i) tuition, or (j) scholarships. Whenever a child within the 
jurisdiction of the court and under the provisions of this article appear 
to the court to be in need of medical or surgical care a suitable order may 
be made for the treatment of such child in its home, in a hospital or 
other suitable institution, and the court may, after a proper hearing, 
issue an order that the person or persons charged with the liability under 
the law to support such child, shall pay the expenses of such treatment 
in the manner provided elsewhere in this article for the support or partial 
support of children committed by the court. 
1936 (39) 1499. 

§ 256-38. Modify and vacate orders and judgments — grant new trial. 

(1) Authorized. — Any order or judgment made by the court in the case 
of any child committed by virtue of any proceeding, may be vacated and 
set aside or modified, as provided by law. But no petition for revocation 
or modification affecting a juvenile delinquent shall be entertained by the 
court within thirty days after the date of his commitment. 

(2) New trials. — In any juvenile delinquency proceeding the court may 
stay execution, set aside or arrest judgment, or grant a new trial or 



§ 256-38 Code of Civil Procedure Page 138 

hearing on any of the grounds, authorizing any court of criminal juris- 
diction so to do. The court also may, in the exercise of its powers of protec- 
tion over a neglected child, make such an order regardless of whether 
a motion therefor was made before or after final judgment or commit- 
ment. The court may entertain an application to that effect by a duly 
authorized agency, association, society, or institution, or by any interested 
person acting on behalf of the child, or may act on its own motion on 
giving proper notice to interested parties or to any agency, association, 
society or institution having custody of the child. 
1936 (39) 1499. 

§ 256-39. Judge visit institutions where delinquent children committed. 

— At least once each year it shall be the duty of the judge to visit each in- 
stitution to which a delinquent child shall have been committed by the 
court during the year. 
1936 (39) 1499 

§ 256-40. Concurrent jurisdiction with probate judge. — The court shall 
have all the duties, power, authority and jurisdiction now vested by law 
in the probate judge of the county, in respect of delinquent or neglected 
children, which shall be concurrent with that of the probate judge, who is 
hereby authorized to refer any case brought before him to the said court. 
Such jurisdiction shall include the power to commit to the reformatories 
of the State in proper cases. 
1936 (39) 1499. 

§ 256-41. Construction. — This article shall be construed to the end that 
the care, custody and discipline of the children brought before the court 
shall approximate as nearly as possible that which they should receive 
from their parents, and that as far as practicable they shall be treated 
not as criminals but as children in need of aid, encouragement and guid- 
ance. 

1936 (39) 1499. 

§ 256-42. Family court — jurisdiction. — The family court shall have 

(1) Jurisdiction within the county to hear and determine all proceedings 
to compel the support of a wife, or child, or step-child; and 

(2) In proceedings properly brought before the court for the support 
of a wife, or child, or step-child it shall have: jurisdiction for the protec- 
tion, guardianship and disposition of neglected or dependent minors. 

(3) Jurisdiction within the county in all cases or, proceedings against 
persons charged with failure to obey an order of the court made pursuant 
to authority conferred by law. 

1936 (39) 1499; 1937 (40) 91. 

§ 256-43. Powers. — In the exercise of its jurisdiction the court shall have 
power 

(1) To order support of a wife or child or step-child or both, irrespective 
of whether they are likely to become a public charge. 

(2) To include in the requirements of an order for support the provid- 
ing of necessary shelter, food, clothing, care, medical attention, expenses 



Page 139 Courts of Domestic Relations § 256-39 

of confinement, the expense of educating his child, the payment of funeral 
expenses, and other proper and reasonable expenses. 

(3) To require of persons legally chargeable with the support of a wife, 
or child, or step-child and who are possessed of sufficient means or who 
are able to earn such means, the payment weekly, or at other fixed 
periods, of a fair and reasonable sum for such support, or as a contribu- 
tion towards such support, according to the means of the persons so 
chargeable; provided, however, that the amount that the court may re- 
quire a respondent to pay for the support of the petitioner shall not exceed 
$25.00 a week. 

(4) To make all orders for support run until further order of the court, 
except that orders for support of a child shall run until the child is 
twenty-one years of age; or, where there are physical or mental disabili- 
ties of the child or other exceptional circumstances that warrant it, in 
the discretion of the court during any period and beyond the child's min- 
ority as such physical or mental disabilities may continue. 

(5) To require the support of a wife who needs support where there are 
no children, even though there is no physical or mental disability. 

(6) To make an order for support of a wife by the husband, even though 
she may have left the home, in cases where the husband's conduct or 
condition or his cruel or inhuman behavior made it unsafe, improper or 
undesirable for her to continue to live with him. 

(7) To make an 'order of protection', in assistance or as a condition of 
an order for support, setting forth conditions of behavior to be observed for 
a specified time which shall be binding upon husbands or wives, or both, 
or upon parties to the proceeding as provided in subsection 7-A of this 
section, either during the pendency of the proceeding or in the final judg- 
ment or in furtherance thereof, or both. 

Such orders may require either spouse, or any other party to the pro- 
ceeding 

(a) To stay away from the home or from the other or either spouse or 
children; 

(b) To permit either spouse to visit the children at stated periods; 

(c) To abstain from offensive conduct against the other spouse, or either 
of them, or against the children; 

(d) To give proper attention to the care of the home; 

(e) To refrain from acts of commission or omission that tend to make 
the home not a proper place for the other, or either spouse, or the children. 

(7-A) In furtherance of the complete disposition of cases in the juris- 
diction of the family court, to bring in and make parties to any proceed- 
ing pending in said court any person or persons (a) who are charged with 
or alleged to be interfering with the marital relationship between a hus- 
band and wife, in violation of law or of the rights of either party to the 
marriage, or (b) whose presence as a party to the proceeding may be 
found necessary to a complete determination of the issues therein, or the 
relief to which the parties thereto, or any of them, may be entitled; and 
shall have the power to enjoin and restrain such interference, and to 
punish violations of such injunctions or restraining orders under the pro- 
visions of subsections 12 and 18 of this section. 

(8) To award the custody of the children, during the term of any order 



§ 256-39 Courts of Domestic Relations Page 140 

of protection, to either spouse, or to an appropriate relative within the 
second degree. But nothing in this article contained shall vest in the 
family court the power to place out or board out any child or to commit 
a child to an institution or agency, except as provided in subsections 15 
and 16 of this section. 

(9) To determine the manner in which sums order paid for support shall 
be paid and applied. 

(10) To require a person ordered to support another to give security 
by a written undertaking that he will pay the sums ordered by the court 
for such support, and upon the failure of any person to give such security 
by a written undertaking when required by order of the court, to punish 
such person under the provisions of subsection (18) of this section; and, 
when appropriate, to discharge any such undertaking. 

(11) In lieu of requiring an undertaking, to suspend sentence and place 
on probation a person who has failed to support another as required by 

law, and to determine the conditions of such probation and require them 
to be observed; to revoke such suspension of sentence and probation, where 
circumstances warrant it, and to discharge a respondent from probation. 

(12) To commit to jail as for contempt of court for a term not to exceed 
twelve months a person who fails to obey the lawful orders of the court. 
Such commitment shall not prevent the court from subsequently commit- 
ting him for failure to thereafter comply with such orders. . 

(13) To release on probation prior to the expiration of the full term a 
person committed to jail for failure to obey an order of the court or upon 
conviction for non-support, where the court is satisfied that the best in- 
terests of the family and the community will be served thereby. 

(14) To modify or vacate any order issued by the court. 

(15) To order either before, during or after a hearing, a mental, physical 
and psychiatric examination of the petitioner or respondent. 

(16) To commit for purposes of observation, in the manner provided by 
law for a probate judge, or as provided in section 6239, a person before 
the court who the court has reason to believe may be insane. 

(17) To exclude the public from the court room in a proper case. 

(18) To punish any person guilty of a contempt of court, as provided 
by law. The failure to pay into court alimony or maintenance and sup- 
port ordered by the court to be so paid or the violation of any of the 
orders of the court, shall be deemed contempt of court within the meaning 
of this subdivision. 

(19) To send process or other mandates in any matter in which it has 
jurisdiction into any county of the State for service or execution in like 
manner and with the same force and effect as similar process or man- 
dates of the circuit courts as provided by law. 

(20) To compel the attendance of witnesses. 

(21) To make any order necessary to carry out and enforce the provisions 
of this article, and to hear and determine any questions of support, cus- 
tody, separation or any other matter over which the family court has 
equitable jurisdiction, without the intervention of a jury. 

(22) To remand for not more than five (5) days for purposes of investiga- 



Page 141 Courts of Domestic Relations § 256-46 

tion, to admit to bail, or to parole on his own recognizance or in the custody 
of counsel, a person charged with non-support. 
1936 (39) 1499; 1937 (40) 91; 1939 (41) 98; 1940 (41) 1862. 

§ 256-44. Matters jurisdiction concurrent with circuit court — procedure — 
appeals. — The court shall have all the power, authority and jurisdiction 
now by law vested in the circuit courts of the State in actions for separa- 
tion, divorce from bed and board, and custody and adoption of children, 
and may hear and determine the validity of any marriage when its validity 
or invalidity shall be relevant and material to the consideration and de- 
cision of any case properly before it. Such jurisdiction shall be concur- 
rent with that of the circuit courts. The proceedings shall follow those 
of the circuit court except that appeals shall be in the first instance to the 
court of common pleas of the county. 

1936 (40) 1499; 1939 (41) 98. 

§ 256-45. Husband liable for support of wife and children — liability of 
wife, grandparents and step-parents for support of children. 

(1) Liability husband support wife and children. — A husband is hereby 
declared to be chargeable with the support of his wife and children, and 
if possessed of sufficient means or able to earn such means, may be re- 
quired to pay for their support a fair and reasonable sum according to his 
means, as may be determined by the court. 

(2) Liability mother support child. — Where the father of a child is dead 
or is incapable of supporting his child or cannot be found within the State, 
the mother of such child is hereby declared to be chargeable with its 
support and, if possessed of sufficient means or able to earn such means, 
may be required to pay for its support a fair and reasonable sum ac- 
cording to her means, as may be determined by the court. 

(3) Liability grandparents support child. — Where the father of a child 
included in a petition for support is dead, or where the court, in its judg- 
ment, is unable to secure adequate support for such child from its parents, 
and the child's grandparents are of sufficient means to support it, said 
grandparents are hereby declared to be chargeable with the support of 
such grandchild and may be required to pay a fair and reasonable sum 
according to their means, as may be determined by the court. 

(4) Liability step-parent support stepchild. — The step-parent of a child is 
declared legally chargeable with the support of a stepchild likely to become 
a public charge provided it is shown to the satisfaction of the court that 
such step-parent had knowledge of the child's existence at the time of said 
step-parent's marriage. 

1937 (40) 91. 

§ 256-46. When husband liable for support or guilty of non-support. — -The 
family court shall have jurisdiction, and a husband may be required to 
furnish support or may be found guilty of non-support, as provided above, 
if, at the time of the filing of the petition for support: 

(a) He is residing or domiciled in the county; or if the county is the 
matrimonial domicile of the parties; 

(b) He is not residing or domiciled in the county but is found therein 



§ 256-46 Code of Civil Procedure Page 142 

at such time, provided, that the petitioner is so residing or domiciled at 
such time; or 

(c) He is neither residing or domiciled nor found in the county but prior 
to such time and, while so residing or domiciled, he shall have failed to 
furnish such support or shall have abandoned his wife or child and there- 
after shall have failed to furnish such support, provided that the petitioner 
is so residing or domiciled at such time. 

1937 (40) 91. 

§ 256-47. Petition for support of wife or child. — Notwithstanding the 
provisions of any other law,, a wife or child or step-child may file with the 
court a petition that the court order the persons legally chargeable with 
their support to support said petitioner as required by law. Such petition 
shall be under oath and may be made on information and belief and may 
be filed on behalf of such wife or child or step-child by the parent or 
guardian of the child, or oilier person in loco parentis, or by any public of- 
ficial having a duty or responsibility relative thereto, or by the repre- 
sentative of an incorporated charitable or philanthropic society having a 
legitimate interest in the petitioner. It shall not be necessary as a condi- 
tion precedent to the filing of such a petition for the petitioner to make 
a demand upon the respondent for support. 
1936 (39) 1499. 

§ 256-48. Petition. — The petition shall be in the name of the person for 
whom support is asked, and shall be in such form as may be prescribed 
by the court. The person for whom support is asked shall be known as 
the petitioner and the person legally chargeable with such support shall 
be known as the respondent. The terms complainant and defendant shall 
not be used. 
1936 (39) 1499. 

§ 256-49. Public officials cooperate — banks give information. — It shall 
be the duty of all public officials and employees, when so requested, to 
render such assistance and cooperation to the court as shall be within 
their power, to further the purposes of this article. Banks and other 
fiduciary institutions are hereby authorized and required to report to the 
court, when so requested, full information relative to any funds therein 
deposited by the petitioner or respondent. 
1936 (39) 1499. 

§ 256-50. Notice to respondent — interview. — Upon the receipt of an ap- 
plication for support the clerk of court, when so directed by the judge, 
shall mail or deliver to the respondent a written notice informing him 
of the fact that such application has been made and asking him to call 
at the court or arrange foi an interview so that his side of the case may 
be fairly presented. His statements and other information with regard 
to him shall be recorded on a form to be known as the "respondent's 
statement" which shall become part of the case history. Such statements 
shall be inquired into by the probation officer. Care shall be taken not 
to disturb the respondent's relations with his employers. 
1936 (39) 1499; 1937 (40) 91. 



Page 143 Courts of Domestic Relations § 256-54 

§ 256-51. Compromise issues — judge approve. — Except where the circum- 
stances indicate it to be undersirable, in all cases where an application 
for support has been made, an effort shall be made by the judge to 
restore harmonious relations between the petitioner and the respondent 
and to adjust the issues raised by the application through conciliation 
and agreement. Where an agreement for the support of the petitioner 
is brought about it must be reduced to writing and submitted to the court 
for approval. The court where possible shall see both parties, and shall 
inquire of each whether the agreement, which he must state to them, is 
what they have agreed tc. If it is, and the court shall approve it, the 
court without further hearing may thereupon enter an order for the sup- 
port of the petitioner by the respondent in accordance with such agreement, 
which shall be binding upon the respondent, and shall in all respects be 
a valid order as though it had been made after process had been issued 
out of the court. The court record shall show that such order was made 
upon agreement. 
1936 (39) 1499. 

§ 256-52. Issue summons when parties cannot agree — refuse. — The court 
after receiving the petition, in cases where no agreement has been reached 
by the respondent and petitioner, shall in a proper case cause a summons 
to be issued, which shall be signed by the court or by the clerk of the 
court, requiring the resoondent to appear at the court at a time and 
place named to show cause why the order for support prayed for by the 
petition shall not be made. Summons shall be in such form as may be 
prescribed by the court. A summons shall not be refused without giving 
the petitioner an opportunity to be heard by and present witnesses to 
the court. 
1936 (39) 1499. 

§ 256-53. Issuance and service of warrants. — When a petition is presented 
to the court ana it shall appear 

(a) that the summons cannot be served; or 

(b) that the respondent has failed to obey the summons; or 

(c) that the respondent is likely to leave the jurisdiction; or 

(d) that in the opinion of the court a summons would be ineffectual; or 

(e) that the safety of the petitioner is endangered; or 

(f) that a respondent on bail or on parole has failed to appear, the court 
may issue a warrant, in the form prescribed in section 256-54, directing 
that the respondent be ariested and brought before the court. Warrants 
and other process may be served by any peace officer, or by the probation 
officer. The court shall make rules relative to the service of warrants. 
Warrants issued by the court shall be valid throughout the State. 

1936 (39) 1499. 

§ 256-54. Form of warrant. — A warrant of arrest may be substantially 
in the following form, the blanks being filled in: 



§ 256-54 Code of Civil Procedure Page 144 

State cf South Carolina, 
County of 



ss: 



To any peace officer in the State of South Carolina: 

A petition under oath having this day been laid before me showing 

that i s legally chargeable with the support 

of. — _ anc j h as f a ii ec j to provide such support and 

praying this court to exercise its powers to compel such support. 

You are, therefore, commanded forthwith to arrest the above-named 

and bring him before this court at 

Dated at , the day of 19 



1936 (39) 1499. 



Judge of Domestic Relations Court of the 
County of 



$ 256-55. Service of summons and warrant by petitioner — arrest of re- 
spondent.— In no case shall the petitioner be permitted to serve either a 
summons or a warrant upon the respondent, unless the court itself shall 
grant such permission upon application of the petitioner. To facilitate 
the arrest of respondent, however, the clerk of the court may issue to the 
petitioner or to the representative of an incorporated charitable or philan- 
thropic society having a legitimate interest in the family, a certificate 
setting forth that a warrant for the respondent has been issued by the 
court, and the presentation of such certificate by said petitioner or repre- 
sentative to any peace officer shall constitute authority for him to ap- 
prehend the respondent and take him to court. Such certificates shall 
expire ninety days from the date of issue but may be renewed from time 
to time by the clerk of the court. 
1937 (40) 91. 

§ 256-56. Certificate of order of protection — issuance — use arrest violators. 

— Similarly, the clerk of the court may issue to the petitioner or the re- 
spondent, as the case may be, a certificate stating that an 'order of protec- 
tion' has made by the court relative to such person and setting forth its 
terms and requirements. The presentation by the petitioner or the re- 
spondent, as the case may be, of such certificate to any peace officer shall 
constitute authority for him to arrest the person charged with violating the 
terms of such order of protection and bring such person to the court and 
otherwise, as far as lies within his power, to aid in securing the protection 
such order was intended to afford. 
1937 (40) 91. 

§ 256-57. Service of summons and process. — Summons and process other 
than warrants may be served through the mails, but a default order shall 
not be entered or a warrant issued thereon for failure to obey a summons 
or process thus served except on proof that it was received by the re- 
spondent. Personal service of summons or other process shall be made 
by the delivery of a true copy thereof to the person summoned, or by leav- 
ing the same at his residence with a person of discretion. In all cases 



Page 145 Courts of Domestic Relations § 256-62 

service of summons must be made within a reasonable time before the 
time stated therein for such appearance, as may be provided by the rules 
of the court. 
1936 (39) 1499. 

§ 256-58. Hear and determine issues. — Upon the return of the summons, 
the court shall proceed to hear and determine the case. The respondent 
shall be informed of the contents of the petition and shall be given op- 
portunity to be heard and to subpoena and present witnesses. If the 
court finds that the respordent is chargeable with the support of the peti- 
tioner and should be compelled to provide such support, the court shall 
make an order requiring such respondent to pay weekly, or at other fixed 
periods, a fair and reasonable sum for, or towards, the support of the peti- 
tioner, and to observe such conditions of behavior as the court may deter- 
mine. 

1936 (39) 1499. 

§ 256-59. Hearings — rule"? — evidence — adjournment — temporary support. 

— Hearings shall be conducted in accordance with such rules as the court 
may adopt, and the court may consider and receive as evidence the result 
of any investigation had or made by the probation officer; provided that 
either party shall be entitled to examine the probation officer under oath 
thereon. The court may adjourn the hearing from time to time for proper 
cause. Where the petitioner's needs are so urgent as to require it, the 
court may make a temporary order for support pending a final determina- 
tion. 

1936 (39) 1499; 1937 (40) 91. 

§ 256-60. Arrests. — When a respondent is brought before the court upon 
an arrest, the court shall proceed as upon the return of the summons as 
provided in sections 256-58 and 256-59, or in its discretion may forthwith 
proceed to try and determine the charge of non-support, and he may be 
admitted to bail, or released on parole, in the court's discretion, to such 
time or times as the court may fix for the hearing or hearings in the 
proceeding. 

1936 (39) 1499; 1937 (40) 91. 

§ 256-61. Counsel — witnesses — presumptions. — At the commencement of 
a hearing under the provisions of sections 256-58 and 256-59, the court shall 
inform the respondent of his right to the aid of counsel at every stage of 
the proceeding and before any further proceedings are had; and in the 
case of a trial sh?U also inform him of the charge against him. In any 
such hearing or trial wives and husbands shall be competent witnesses 
against each other; a husband or father shall, prima facie, be presumed to 
have sufficient means to support his wife and children; a dependent adult 
without means to maintain herself shall be presumed to be likely to be- 
come a public charge. 
1936 (39) 1499. 

§ 256-62. Failure to support. — Where a respondent shall neglect or refuse 
to obey an order for support made under the provisions of section 256-58, 



§ 256-62 Code of Civil Procedure Page 146 

or upon agreement signed by the respondent and approved by the court, 
and the court is satisfied thereof by competent proof, it may, with or with- 
out notice, issue a warrant to commit the respondent to jail until the order 
is obeyed or until the respondent is discharged by law, but in no event for 
a period exceeding twelve months. 
1936 (39) 1499; 1937 (40) 9j. 

§ 256-63. Place on probation. — In the case of a respondent who shall have 
neglected or refused to obey an order for support as provided in sections 
256-58 and 256-62 the court may suspend sentence or the execution of the 
warrant, as the case may be, and place him on probation under such condi- 
tions as the court may determine. No person, however, shall be placed 
on probation unless an order to that effect is made by the court. 
1936 (39) 1499. 

§ 256-64. Revoke probation — effect. — The court may at any time, where 
circumstances warrant it, revoke the probation of a respondent. Upon such 
revocation the respondent shall be brought to court and shall be dealt with 
by the court as if there had been no probation, and to that end with, or 
without a further hearing, the court may make any order that might have 
been made at the time of such probation. 
1936 (39) 1499. 

§ 256-65. Admit to bail — bond. — If the respondent be admitted to bail, 
the condition of the undertaking shall be for his future appearance ac- 
cording to the terms thereof, or in default of such appearance, that the 
surety will pay to the clerk of the court a specified sum as therein set 
forth. Instead of entering into such an undertaking a respondent may 
deposit money in an amount to be fixed by the court. If the respondent 
fails to appear in accordance with the terms of the undertaking, the court 
shall enter the fact of such non-appearance upon the record, and the under- 
taking for his appearance, or the money deposited in lieu thereof, shall 
be forfeited and upon order of the court the sum recovered shall be applied 
by the clerk of the court for the benefit of the petitioner. The court may, 
however, in its discretion remit such forfeiture. 
1936 (39) 1499. 

§ 256-66. Arrests when court not in session. — If a respondent is arrested 
under a warrant of the family court at a time when the family court is not 
in session, he shall be taken to the most accessible magistrate and arraign- 
ed before him. The production of the warrant shall be evidence of the 
filing of a proper information, and the magistrate shall thereupon hold the 
respondent, admit to, fix or accept bail, or parole him for trial before the 
family court. All subsequent proceedings shall be had in the family 
court. 
1936 (39) 1499. 

§ 256-67. Duty of magistrates as to certain persons. — Whenever a person 
is brought before a magistrate and, in the opinion of such magistrate, the 
person should properly be brought to the family court, the magistrate 



Page 147 Courts of Domestic Relations § 256-72 

shall thereupon transfer such case to the family court and direct that the 
persons involved be taken thereto. 
1936 (39) 1499. 

§ 256-68. Probation officer visit persons in jail — report. — "Where a respond- 
ent has been committed to jail he shall be visited shortly after such com- 
mitment by the probation officer assigned for duty for the purpose of 
seeing whether he is then likely to obey the order of the court if released. 
A report in writing shall be made to the court by the probation officer, 
setting forth the nature of the interview thus had. The time of making 
the initial visit and subsequent visits to respondents in jail, which shall 
be made at reasonably frequent intervals, shall be at such times as the 
rules of the court may prescribe. Written reports shall be made of all 
such interviews. These shall be part of the case history. 
1936 (39) 1499. 

§ 256-69. Give bond provide support. — The court may require the re- 
spondent to given to the clerk a written undertaking with sufficient 
surety approved by the court that the respondent will abide by the order 
for support. The required amount of the principal of such undertaking 
shall not exceed the total payments for support required for three years 
and shall be stated in the order for support. The respondent may deposit 
such sum in cash with the clerk. The form of the undertaking and the 
form and manner of justification of the surety shall conform to the rules of 
the court. 
1936 (39) 1499. 

§ 256-70. New bond. — Tiie court may at any time thereafter, before or 
after there has been a default, if all arrears have been paid in case there 
shall have been a default on such undertaking, accept a new undertaking 
in lieu of the original undertaking, and the court shall enter an order 
discharging such undertaking. 
1936 (39) 1499. 

§ 256-71. Default. — A default in the terms of the order shall constitute 
a breach of the undertaking. When there has been a default the court 
shall cause an affidavit to be drawn, verified and filed by any person 
familiar with the facts. The surety shall thereupon be personally served 
with notice of such default and shall be required to attend at the court 
on a day certain and show cause why judgment should not be entered on 
the undertaking and the amount therof applied to the relief of the peti- 
tioner for the amount in default. If the surety appears and pays the 
amount in arrears the court may remit the forfeiture. Inability to serve 
the surety shall not be prejudicial to the renewal of proceedings against 
the respondent. 
1936 (39) 1499. 

§ 256-72. Court decide if default exist — effect of judgment. — If the surety 
contest the default the court shall hear and determine the issue. In the 
event that the court finds that a default has been suffered, it shall make 
an order specifying the amount in default and forfeiting the undertaking 



§ 256-72 Code of Civil Procedure Page 148 

or cash deposit to the extent of such default. A certified copy of such 
order shall be filed in the office of the clerk of the court of common pleas 
of the county with a certified copy of the undertaking and thereupon the 
said clerk shall docket the same in the book kept by him for the docket- 
ing of judgments, as if the same was a transcript of a judgment for the 
amount of such sum in default. The certified copy of the undertak- 
ing and of the order shall be the judgment record. Such judgment shall 
be in lien on all of the real estate, as in the case of other judgments entered 
therein, and collectible out of the real and personal property of the surety. 
An execution may be issued to collect the amount thereof in the same 
manner as upon a judgment recovered in any court of record. It shall be 
the duty of the attorney for the county board of commissioners to take 
the necessary proceedings to collect such judgment. 
1936 (39) 1499. 

§ 256-73. Use of funds forfeited or defaulted — death of respondent. 

(1) Funds forfeited or defaulted. — All sums collected from the surety 
by judgment as well as forfeited cash deposits shall be applied by the 
clerk of court to the supDort of the petitioners for whose benefit the order 
for support was made. Subsequent defaults shall be proceeded upon in 
the same manner until the amount of the principal of the undertaking or 
the cash deposited has been recovered in full. 

(2) Payment on death of respondent. — Where the respondent, or any 
one in his behalf, shall have deposited with the court monies as surety for 
compliance with the terms of the order of support and the respondent shall 
have died, the court may make an order directing the payment to the 
petitioner of all monies still in possession of the court in conformance 
with the other of support. 

1936 (39) 1499. 

§ 256-74. Relieve surety of liability. — A surety may at any time surrender 
a respondent to the court. The respondent shall thereupon be dealt with 
as provided in the order for support. If the arrears on the order for support 
with interest thereon are paid in full, the court may make an order dis- 
charging the surety of any further liability and directing the return of the 
balance of the cash on deposit to the person entitled thereto 
1936 (39) 1499. 

§ 256-75. Order of liability ceased. — Whenever the liability on an under- 
taking has ceased, the court shall make an order to that effect. 
1936 (39) 1499. 

§ 256-76. Require new or additional security. — -After an undertaking has 
been given or cash has been deposited and it shall appear upon proof of 
affidavit either. 

(a) that a judgment entered upon default cannot be collected; or 

(b) that the liability of the surety has ceased; or 

(c) that the money deposited has been applied in full; or 

(d) that personal service cannot be effected upon the surety or the per- 
son depositing the cash; or 

(e) if for any reason the court shall find that there is not sufficient 



Page 149 Courts of Magistrates § 257 

security; the court may issue a warrant for the arrest of the respondent, 
and require him to give new or additional security. In default thereof 
the court may commit him under the original order in the manner herein- 
above provided. 
1936 (39) 1499. 

§ 256-77. Effect of other laws. — All laws and parts of laws whether gen- 
eral, local or special, which are inconsistent with or in conflict with or 
repugnant to any provision of this article shall be deemed not to apply. 
1936 (39) 1499. 

§ 256-78. Jurisdiction of other courts not affected. — Nothing in this article 
contained shall be deemed to limit, abridge, or impair the jurisdiction of 
the circuit court, probata court or of any court of record. 
1936 (39) 1499. 

§ 256-79. Invalidity. — If any provision of this article is held by the courts 
to be invalid, such decision shall not affect the validity of the rest of the 
article. 
1936 (39) 1499. 



CHAPTER 5 
Courts of Magistrates 

257. Civil jurisdiction. 266 thru 268. Undertaking by defendant. 

258 thru 260. Bail. 269, 272. Issue of title to realty. 

261. Concealed property. 270. New action. 

262. Custody of property. 271. Costs. 

263. Claim of property by third person. 273. Judgment and new trial. 

264. No jurisdiction in certain cases. 274. Rules. 

265. Answer of title. 275. Waiver of jurisdiction. 

§ 257. Civil jurisdiction. — Magistrates shall have civil jurisdiction in the 
following actions: 

(1) In actions arising on contracts for the recovery of money only, if 
the sum claimed does not exceed one hundred dollars. 

(2) An action for damages for injury to rights pertaining to the person, 
or personal or real property, if the damages claimed do not exceed one 
hundred dollars, and in cases of bastardy. 

(3) An action for a penalty, fine, or forfeiture, where the amount 
claimed or forfeited does not exceed one hundred dollars. 

(4) An action commerced by attachment of property, as now provided 
by statute, if the debt or damages claimed do not exceed one hundred 
dollars. 

(5) An action upon bond conditioned for the payment of money, not 
exceeding one hundred dollars, though the penalty exceed that sum, the 
judgment to be given for the sum actually due. Where the payments are 
to be made by installments, an action may be brought for each installment 
as it becomes due. 

(6) An action upon a surety bond taken by them, where the penalty 



§ 257 Code of Civil Procedure Page 150 

or amount claimed does not exceed one hundred dollars. 

(7) An action upon a judgment rendered in a court of a magistrate or 
an inferior court, where such action is not prohibited by section 318. 

(8) To take and enter judgment on the confession of a defendant, where 
the amount confessed shall not exceed one hundred dollars, in the man- 
ner prescribed by law. 

(9) An action for damages, fraud in the sale, purchase, or exchange of 
personal property, if the damages claimed do not exceed one hundred 
dollars. 

(10) In all matters between landlord and tenant, and the possession of 
land as provided in §§ 8804 thru 8825. 

(11) An action to recover the possession of personal property claimed, 
the value of which, as stated in the affidavit of the plaintiff, his agent, or 
attorney, shall not exceed the sum of one hundred dollars. 

The plaintiff in such action, at the time of issuing the summons, but 
not afterwards, may claim the immediate delivery of such property as 
hereinafter provided. 

Before any process shall be issued in an action to recover the possession 
of personal property, the plaintiff, his agent, or attorney, shall make 
proof by affidavit, showing: 

(a) That the plaintiff is the owner, or entitled to immediate possession, 
of the property claimed, particularly describing the same. 

(b) That such property is wrongfully withheld or detained by the de- 
fendant. 

(c) The cause of such detention or withholding thereof, according to 
the best knowledge, information, and belief of the person making the 
affidavit. 

(c) That said personal property has not been taken for any tax, fine, or 
assessment, pursuant to statute, or seized by virtue of an execution 
or attachment against the property of said plaintiff; or, if so seized, that 
it is exempt from such seizure by statute. 

(e) The actual value of said personal property. 

(12) On receipt of such affidavit, and an undertaking, in writing, execut- 
ed by one or more sufficient sureties, to be approved by the magis- 
trate befofe whom such action is commenced, to the effect that they are 
bound in double the value of such property as stated in said affidavit, 
for the prosecution of the said action, and for the return of said property 
to the defendant, if return thereof be adjudged, and for the payment to 
him of such sum as may, for any cause, be recovered against said plaintiff, 
the magistrate shall endorse upon said affidavit a direction to any con- 
stable of the county in which said magistrate shall reside, requiring said con- 
stable to take the property described therein from the defendant, and 
keep the same, to be disposed of according to law; and the said magistrate 
shall at the same time issue a summons, with a copy of the undertaking, 
directed to the defendant, and requiring him to appear before said magis- 
trate at a time and place to be therein specified, and not more than twenty 
days from the date thereof, to answer the complaint of said plaintiff; and 
the said summons shall contain a notice to the defendant that, in case he 
shall fail to appear at the time and place therein mentioned, the plaintiff 
will have judgment for the possession of the property described in said 



Page 151 Courts of Magistrates § 257 

affidavit, with the costs and disbursements of said action. 

(13) The constable to whom said affidavit, endorsement and summons 
shall be delivered, shall forthwith take the property described in said affi- 
davis, if he can find the same, and shall keep the same in his custody. 
He shall, thereupon, without delay, serve upon said defendant a copy of 
such affidavit, notice and summons, by delivering the 'same to him per- 
sonally, if he can be found in said county; if not found, to the agent of 
the defendant in whose possession said property shall be found; if neither 
can be found, by leaving such copies at the last or usual place of abode 
of the defendant, with some person of suitable age and discretion. And 
he shall forthwith make a return of his proceedings thereon, and the man- 
ner of serving the same, to the magistrate who issued the said summons. 

(14) The defendant may at any time after such service, and at least 
two days before the return day of said summons, serve upon plaintiff, or 
upon the constable who made such service, a notice in writing that he 
excepts to the sureties in said bond or undertaking; and if he fail to do 
so, all objection thereto shall be waived. If such notice be served, the 
sureties shall justify, or the plaintiff give new sureties, on the return day 
of said summons, who shall then appear and justify, or said magistrate 
shall order said property delivered to defendant, and shall also render 
judgment for defendant's cost and disbursements. 

(15) At any time before the return day of said summons, the said de- 
fendant may, if he has not excepted to plaintiff's sureties, require the 
return of said property to him upon giving to the plaintiff, and filing 
same with the magistrate, a written undertaking, with one or more 
sureties, who shall justify before said magistrate on the return day of 
said summons, to the effect that they are bound in double the value of 
said property, as stated in plaintiff's affidavit, for the delivery thereof 
to said plaintiff, if such delivery be adjudged, and for the payment to 
him of such sum as may for any cause be recovered against said defend- 
ant; and if such return be not required before the return day of said sum- 
mons, the property shall be delivered to said plaintiff. 

See § 551-1 for bond give. 

1932 Code, § 257; Civ. P. '22, § 213; Civ. P. '12, § 80; Civ. P. '02, § 71; 1870 (14); 1879 
(17) 28; Con. Art. V. §§ 20, 21. 

I. In General. 70 S. C. 397, 50 S. E. 27; Ragin v. North- 

II. Subdivision (1). western R. Co., 108 S. C. 171, 93 S. E. 

III. Subdivision (2). 860. 

IV. Subdivision (3). But this jurisdictional defect may be 
V. Subdivision (4). waived where the defendant appears 

VI. Subdivision (5). and answers on the merits. — The right 

VII. Subdivision (11). to demur to the summons and complaint 

VIII. Subdivision (12). because it does not allege that the de- 

IX. Subdivision (14). fendant is a resident of the county in 

X. Subdivision (9 and 10). which the magistrate has jurisdiction 

Cross References. may be waived where the defendant ap- 

As to jurisdiction to punish for assault pears in the magistrates court and an- 

and battery, see § 924. As to constitu- swers on the merits. Baker v. Irvine, 62 

tional provision relating to jurisdiction, S. C. 293, 40 S. E. 672. 

see Const, art. 5, § 21. And where defendant resides in an- 

I. IN GENERAL. other township there is no jurisdiction. 

Must appear on record that defendant — A magistrate has no right to try a 

is resident of county. — In order to give claim and delivery action where the de- 

a magistrate jurisdiction it must appear fendant resides in another township. 

on the record that the defendant is a Jones v. Brown, 57 S. C. 14, 35 S. E. 397. 

resident of the county. Hall v. Sullivan, But see Wise v. Werts, 72 S. C. 132, 51 



§ 257 



Code of Civil Procedure 



Page 152 



S. E. 547. 

A requirement that an action should 
be brought before a magistrate in the 
county where the cause of action arose 
is unauthorized. Baker v. Irvine, 62 S. 
C. 293, 40 S. E. 672. 

Necessarily includes corporations. — 
See above catchline under subdivision 
2 and note thereto, analysis line, III. 

Cited but not construed in Stewart 
Jones Co. v. Shehan, 127 S. C. 451, 121 
S. E. 374. 

II. SUBDIVISION (1). 

Jurisdiction determined by amount 
claimed. — The jurisdiction under this 
section, is determined by the amount 
claimed by the plaintiff and not the 
amount actually due. Brunson v. Fur- 
tick, 72 S. C. 579, 52 S. E. 424, 5 Ann. Cas. 
307; Haygood v. Boney, 43 S. C. 63, 
20 S. E. 803. 

But the plaintiff cannot put a ficti- 
tious value on property in order to con- 
fer jurisdiction. — A party cannot put a 
fictitious value on property in order to 
confer jurisdiction though he can fore- 
go a part of his claim for money. Stroy 
v. Nicpee, 105 S. C. 265, 89 S. E. 666. 

Reduction of claim to bring it within 
magistrate's jurisdiction. — It is no ob- 
jection to the jurisdiction of a magistrate 
that the plaintiff reduced his demand to 
bring it within the jurisdiction of the 
magistrate; but where, in so reducing 
his claim, the plaintiff leaves out an 
item which he could have included in 
the cause of action, he cannot afterwards 
sue thereon. Catawba Mills v. Hood, 42 
S. C. 203, 20 S. E. 91. 

Following the general rule stated 
above it has been held that a party in 
a magistrate's court may claim and sue 
for less than due on note, so as to give a 
magistrate jurisdiction. Brunson v. Fur- 
tick, 72 S. C. 579, 52 S. E. 424, 5 Ann. 
Cas. 307. 

Effect of counterclaim. — As just stated 
general rule is that the jurisdiction is 
determined by the amount claimed by 
the plaintiff without reference to any 
defense or plea set up by the defend- 
ant. 

And the court in Corley v. Evans, 69 
S. C. 520, 48 S. E. 459, 460, stated: "In 
setting up a counterclaim, the defend- 
ant becomes the actor, relying on a new 
cause of action. In the absence of statu- 
tory regulation, when a suit is pending 
in a magistrate's court on a cause of 
action within that jurisdiction, it seems 
clear that the defendant cannot oust the 
jurisdiction by bringing a cross-suit for 
an amount beyond the jurisdiction of 
the magistrate. This condition of the 
law may seem in some cases to result 
in hardship; or an insolvent, holding a 
claim under $100, may recover judg- 
ment in a magistrate's court, and under- 



take to enforce it while owing a large 
sum to the defendant; but such an at- 
tempt may be met by the reducing his 
defendant's counterclaim to an amount 
within the jurisdiction of the magistrate 
(Haygood v. Boney, 43 S. C. 63, 20 S. E. 
803); and, it may be, relief could be ob- 
tained in a separate proceeding." See, 
also, Dupre v. Gilland, 156 S. C. 109, 
152 S. E. 873, discussing the foregoing 
principles in relation to the civil court 
of Florence, treated under § 103. 

Deprivation of jurisdiction by counter- 
claim exceeding $100. — A magistrate is 
deprived of jurisdiction by a counter- 
claim for an amount exceeding $100. 
Haygood v. Boney, 43 S. C. 63, 20 S. E. 
803; Corley v. Evans, 69 S. C. 520, 48 S. 
E. 459. 

III. SUBDIVISION (2). 
Jurisdiction is concurrent with that of 

court of common pleas. — State v. Fille- 
brown, 2 S. C. 404; Rhoades v. Railroad, 
6 S. C. 385. 

Jurisdiction does not embrace actions 
for damages more than $100. — Jurisdic- 
tion of magistrates does not embrace ac- 
tions for damages claimed above one 
hundred dollars. Stegall v. Bolt, 11 S. 
C. 522. Nor for damages indefinite in 
amount given by statute. State v. Weeks, 
14 S. C. 400. 

Action by a landlord against constable 
for funds applicable to rent in his hand. 
— An action by a landlord against a con- 
stable for proceeds of a crop in his hands 
applicable to rent is an action for dam- 
ages for injury to rights pertaining to 
personal property within the meaning of 
this section. Sullivan v. Ellison, 20 S. 
C. 481. 

Necessarily includes corporations. — 
This subdivision necessarily includes 
corporations. And magistrates may have 
jurisdiction even in a suit against a for- 
eign corporation. Dennis v. Atlantic 
Coast Line R. Co., 86 S. C. 258, 68 S. E. 
465. 

If the defendant is a domestic cor- 
poration the suit may be brought in 
any county where it maintains an agent 
and transacts its corporate business. 
Dennis v. Atlantic Coast Line R. Co., 
86 S. C. 258, 68 S. E. 465. 

IV. SUBDIVISION (3). 
Includes defendants appearing before 

or subject to the process of magistrate. — 

This section gives magistrates jurisdic- 
tion in such cases against all defendants 
subject to the process of the court or 
who may voluntarily appear therein. 
Best v. Seaboard Airline Ry., 72 S. C. 
479, 52 S. E. 223, cited in Dennis v. At- 
lantic Coast Line Railway, 86 S. C. 258, 
68 S. E. 465. 

And applies to a foreign corporation. — 
A magistrate has jurisdiction of an ac- 



Page 153 



Courts of Magistrates 



§ 257 



tion against a foreign corporation hav- 
ing property in the state to recover a 
penalty by due service of process. Best 
v. Seaboard Airline Ry., 72 S. C. 479, 52 
S. E. 223. 

Right to object to jurisdiction may be 
waived. — Where the defendant in an ac- 
tion for a penalty residing in another 
county appeared and contested the case 
upon its merits the right to object to the 
jurisdiction of the magistrate to try such 
case was waived. Jenkins v. Atlantic 
Coast Line R. Co., 84 S. C. 343, 66 S. E. 
409. See, also, the authority therein 
cited; and see Best v. Seaboard Airline 
Ry., 72 S. C. 479, 52 S. E. 223. 

Penalties required to be recovered in 
a court of record cannot be recovered 
hereunder. — A forfeiture of twenty dol- 
lars under a statute which provides for 
its recovery in a court of record cannot 
be recovered hereunder. State v. Weeks, 
14 S. C. 400. 

V. SUBDIVISION (4). 

Nor was such right affected by con- 
stitution of 1895. — The jurisdiction of 
magistrates to issue writs of attachment 
against the property of a non-resident 
was not affected by the constitution of 
1895. Bird v. Sullivan, 58 S. C. 50, 36 
S. E. 494. 

Subdivision includes cases where de- 
fendant is a non-resident. — Under this 
subdivision a magistrate has jurisdic- 
tion, in an action by attachment against 
a non-resident, to at least render a judg- 
ment in rem. Bird v. Sullivan, 58 S. C. 
50, 36 S. E. 494; Burckhalter v. Jones, 58 
S. C. 89, 36 S. E. 495. 

A non-resident defendant, by appear- 
ing on the day of trial, and contesting 
the case on the merits by denying the 
allegations of the complaint, gives the 
magistrate jurisdiction to render a judg- 
ment in personam. Bird v. Sullivan, 58 
S. C. 50, 36 S. E. 494. 

VI. SUBDIVISION (5). 
Applied in Cavender v. Ward, 28 S. C. 

470, 6 S. E. 302. 

Cited but not construed in Hagood v. 
Blythe, 37 Fed. 249. 

VII. SUBDIVISION (11) 

Section not in conflict with constitu- 
tion limiting actions ex delicto. — This 
provision allowing such action for re- 
covery of property less in value than one 
hundred dollars is not in conflict with 
the constitution, which limits jurisdic- 
tion in actions "ex delicto" where dam- 
ages do not exceed one hundred dollars. 
Dillard v. Samuels, 25 S. C. 318. 

If the plaintiff does not claim immedi- 
ate delivery, as authorized by the sec- 
ond sentence of this subdivision, then 
he must make the proof by affidavit as 
required in the latter part of the section. 
Dillard v. Samuels, 25 S. C. 318, 321. 

Not necessary to allege in summons 



that plaintiff is entitled to possession. — 

It is not necessary to allege in the sum- 
mons that the plaintiff is entitled to the 
possession of the property; it is suffi- 
cient to allege that the defendant is in 
unlawful possession of the property be- 
longing to the plaintiff. Dillard v. Sam- 
uels, 25 S. C. 318. 

No jurisdiction where the alleged val- 
ue of chattels is $100 and damages also 
claimed. — A magistrate has no jurisdic- 
tion where the chattels are alleged to 
be of the value of $100 and damages are 
claimed in addition. Reynolds v. Phil- 
lips, 72 S. C. 32, 51 S. E. 523. 

Affidavit must state that value of 
property does not exceed $100. — The 
affidavit must state that the value of 
the property does not exceed one hun- 
dred dollars. Williams v. Irby, 16 S. 
C. 371. But whether such statement is 
necessary in the circuit court on appeal 
has not been decided. Id. See, also, 
Wright v. Lee, 108 S. C. 357, 94 S. E. 
873. 

Variance between affidavit and plead- 
ings may be amended. Ehrhardt v. Bree- 
land, 57 S. C. 142, 35 S. E. 537. 

Affidavits to show demand may be 
heard on appeal to circuit court. — On 
appeal circuit court may hear affidavits 
to show demand before action of claim 
and delivery. Burton v. Laurens Cotton 
Mills, 64 S. C. 224, 41 S. E. 975. 

Cited but not construed in Kelley v. 
Kennemore, 47 S. C. 256, 25 S. E. 134. 
VIII. SUBDIVISION (12). 

Refers exclusively to actions of claim 
and delivery. — This section is manifest- 
ly applicable to actions of claim and 
delivery only. Kelley v. Kennemore, 47 
S. C. 256, 25 S. E. 134; Hasten Furniture 
Co. v. Southern Ry., 82 S. C. 238, 64 S. 
E. 223. 

Sufficiency of summons. — A summons 
which required the defendant to appear 
on the twentieth day from the service 
of the summons exclusive of the day of 
service at 10 o'clock A. M., was insuf- 
ficient to give the justice jurisdiction to 
render a judgment at the time fixed in 
the summons. Adkins v. Moore, 43 S. C. 
173, 20 S. E. 985. 

Summons is defective if it names a 
day for trial more than twenty days 
after its date. — The summons is fatally 
defective if it names a day for trial more 
than twenty days after its date. Simmons 
v. Cochran, 29 S. C. 31, 6 S. E. 859. This 
case was distinguished in State v. Smith, 
38 S. C. 270, 16 S. E. 997; reaffirmed in 
Kelley v. Kennemore, 47 S. C. 356, 25 S. 
E. 134. 

Immaterial whether summons is ad- 
dressed to defendant or officer. — It is 
immaterial whether the summons is ad- 
dressed to the defendant or officer. Bell 
v. Pruit, 51 S. C. 344, 29 S. E. 5. 



§ 257 Code of Civil Procedure Page 154 

Approval of surety by magistrate. — in undertaking by not excepting. — The 

Where, upon delivery of undertaking in objection that the magistrate did not en- 
claim and delivery proceeding in mag- dorse his approval on an undertaking is 
istrate's court, magistrate directed his waived by not excepting thereto. Crom- 
constable to take property described in er v . Watson, 59 S. C. 488, 38 S. E. 126. 
affidavit, such direction amounted to „, „„„^ TT „„._„ ,„ »„~ ,„, 
an approval of the surety by the magis- X - SUBDIVISION (9 AND.10K. 
trate. Marshall Bros. Furniture Co. v. In ejectment proceeding before magis- 
Drawdy, 184 S. C. 492, 193 S. E. 49. trate, against tenant holding over, sub- 
Plaintiff need not execute undertak- division 9, referring to actions brought 
ing given by him in claim and delivery for damages for fraud in the sale, pur- 
proceeding in magistrate's court. Ibid. chase, or exchange of personalty has no 
IX. SUBDIVISION (14). application. 194 S. C. 469, 10 S. E. (2d) 3. 
Waiver of any irregularity or defect 

§ 258. Qualification of bail. — The qualification of bail must be as follows: 

(1) Each of them must be a resident, and householder or freeholder 
within the State. 

(2) They must each be worth the amount specified in the order of arrest, 
exclusive of property exempt from execution; but the judge or a mag- 
istrate, on justification, may allow more than two bail to justify severally 
in amounts less than that expressed in the order, if the whole justification 
be equivalent to that of two sufficient bail. 

1932 Code, § 258; Civ. P. '22, § 214; Civ. P. '12, § 81; Civ. P. '02, § 72; 1870 (14) § 75. 

§ 259. Justification of bail. — For the purpose of justification, each of 
the bail shall attend before the judge or magistrate at the time and place 
mentioned in the notice, and may be examined on oath, on the part of 
the plaintiff, touching his sufficiency, in such manner as the judge or 
magistrate, in his discretion, may think proper. The examination shall 
be reduced to writing, and subscribed by the bail, if required by the 
plaintiff. 

1932 Code, § 259; Civ. P. '22, § 215; Civ. P. '12, § 82; Civ. P. '02, § 73; 1870 (14) 
§ 76. 

§ 260. Allowance of bail. — If the judge or magistrate find the bail suf- 
ficient he shall annex the examination to the undertaking, endorse his 
allowance thereon, and cause them to be filed with the clerk; and the 
sheriff shall, thereupon, be exonerated from liability. 
1932 Code, § 260; Civ. P. '22, § 216; Civ. P. '12, § 83; Civ. P. '02, § 74; 1870 (14) § 77. 

§ 261. Property — how taken when concealed in building or enclosure. — 

If the property, or any pait thereof, be concealed in a building or enclo- 
sure, the constable shall publicly demand its delivery. If it be not de- 
livered, he shall cause the building or enclosure to be broken upon, and 
take the property into his possession; and, if necessary, he may call to his 
aid the power of his county. 
1932 Code, § 261; Civ. P. '22, § 217; Civ. P. '12, § 84; Civ. P. '02, § 75; 1870 (14) 78. 

§ 262. Property — how kept. — When a constable shall have taken property, 
as in this chapter provided, he shall keep it in a secure place, and deliver 
it to the party entitled thereto, upon receiving his lawful fee for taking, 
and his necessary expenses for keeping the same. 
1932 Code, § 262; Civ. P. '22, § 218; Civ. P. '12, § 85; Civ. P. '02, § 76; 1870 (14) 79. 



Page 155 Courts of Magistrates § 263 

§ 263. Claim of property by third person — trial — judgment — execution 
— defendant absent. — If the property taken be claimed by any other per- 
son than the defendant or his agent, and such person shall make affidavit 
to his title thereto, and right to the possession thereof, stating the grounds 
of such right and title, and serve the same upon the constable, the con- 
stables shall not be bound to keep the property or deliver it to the plaintiff, 
unless the plaintiff on demand of him or his agent, shall indemnify the 
constable against such claim, by an undertaking, executed by two suf- 
ficient sureties, accompanied by their affidavits, that they are each worth 
double the value of the property as specified in the affidavit of the plain- 
tiff, and are freeholders and householders of the county. And no claim 
to such property, by any other person than the defendant or his agent, 
shall be valid against the constable, unless made as aforesaid; and notwith- 
standing such claim, when so made, he may retain the property a reason- 
able time to demand such indemnity. 

The actions so commenced shall be tried in all respects as other actions 
are tried in the magistrates' courts. 

The judgment for the plaintiff may be for the possession, or for the 
recovery of the possession, or the value thereof, in case a delivery cannot 
be had, and of damages for the detention. If the property have been 
delivered to the plaintiff, and the defendant claim a return thereof judg- 
ment for the defendant may be for a return of the property, or the value 
thereof, in case a return cannot be had, and damages for taking and 
withholding the same. An execution shall be issued thereon and if the 
judgment befor the delivery of the possession of personal property, it 
shall require the officer to deliver the possession of the same, particularly 
describing it, to the party entitled thereto, and may, at the same time, 
require the officer to satisfy any costs or damages recovered by the same 
judgment out of the personal property of the party against whom it was 
rendered, to be specified therein, if a delivery thereof cannot be had. The 
execution shall be returnable within sixty days after its receipt by the 
officer to the magistrate who issued the same. 

In all actions for the recovery of the possession of personal property, 
as herein provided, if the property shall not have been delivered to plain- 
tiff, or the defendant by answer shall claim a return thereof, the mag- 
istrate or jury shall assess the value thereof, and the injury sustained by 
the prevailing party by reason of the taking or detention thereof, and the 
magistrate shall render judgment accordingly, with costs and disburse- 
ments. 

If it shall appear by the return of a constable that he has taken the pro- 
perty described in the plaintiff's affidavit, and that defendant cannot be 
found, and has no last place of abode in said county, or that no agent of 
defendant could be found, on whom service could be made, the magistrate 
may proceed with the cause in the same manner as though there had been 
a personal service. 

For the endorsement on said affidavit the magistrate shall receive an 
additional fee of twenty-five cents, which shall be included in the costs of 
the suit. 

1932 Code, § 263; Civ. P. '22, § 210; Civ. P. '12, § 86; Civ. P. '02, § 77; 1870 (14) § 80. 



§ 263 



Code of Civil Procedure 



Page 156 



Judgment failing to declare value of 
property awarded void. — A judgment in 
a claim and delivery proceedings before 
a magistrate which merely awarded the 
plaintiff the property in dispute without 
declaring the value of the property as 
provided for under this section is void. 
Yarborough v. Dickerson, 132 S. C. 168, 
129 S. E. 136. See, also, Wilkins v. Wil- 
liams, 128 S. C. 509, 122 S. E. 503. 

Judgment may be given for value 
though the demand is for property. — 
Judgment may be given for the value 
of the property though the demand is 
only for its recovery and damages for 
its detention. Joplin v. Carrier, 11 S. C. 
327. 

But not in a case where party is en- 
titled to general damages. — A judgment 
for the value of the property so de- 
manded cannot be given in a case where 
the party is entitled to general damages. 
Joplin v. Carrier, 11 S. C. 327. 

But plaintiff on appeal may elect to 
treat action as one for damages. — Where 
there are proper allegations the plaintiff 
may on appeal, in the circuit court, elect 
to treat the action as one for damages. 
Williams v. Irby, 16 S. C. 371. 



Defendant cannot defeat action by 
showing title in third party. — In a claim 
and delivery proceeding the defendant 
cannot defeat the action by showing title 
in a third party. Rogers v. Felder, 98 
S. C. 178, 82 S. E. 436. 

New trial is the remedy where ver- 
dict is not in proper form. — Where the 
verdict is not in proper form, the trial 
justice cannot change it; new trial is the 
remedy. Dubose v. Armstrong, 29 S. C. 
290, 6 S. E. 934. 

Verdict is sufficient if it fixes right 
of defendant to return of property. — A 
verdict in an action of claim and de- 
livery fixing the right of the plaintiff to 
have the property, or the value thereof, 
and the right of the defendant to deliver 
the property rather than pay the value 
if he so choose, is in full compliance 
with this section. Bossard v. Vaughan, 
68 S. C. 96, 46 S. E. 523. 

Verdict may be referred to the plead- 
ings for a particular description of the 
property. — A verdict in claim and de- 
livery may be referred to the pleadings 
for a more particular description of the 
property. Bossard v. Vaughan, 68 S. C. 
96, 46 S. E. 523. 



§ 264. No jurisdiction in certain cases. — But no magistrate shall have 
cognizance of a civil action: 

(1) In which the State is a party, excepting for penalties and not ex- 
ceeding one hundred dollars. 

(2) Nor where the title to real property shall come in question. 

(3) Nor of a civil action for an assault, battery, false imprisonment, libel, 
slander, malicious prosecution, criminal conversation, or seduction, where 
the damages claimed exceed one hundred dollars. 

1932 Code, § 264; Civ. P. '22, § 220: Civ. P. '12, § 87; Civ. P. '02, § 78; 1870 (14) § 81; 
1873 (15) 496. 



Subdivision 2 does not apply to crim- 
inal cases. — It has been held that a mag- 
istrate had jurisdiction of a complaint 
for criminal trespass where the damages 
are less than $20, though the defendant 
set up as his defense that the prosecu- 
tors had not title but that the title was 
in his wife. State v. Holcomb, 63 S. C. 22, 
40 S. E. 1017. 

Failure to follow prescribed procedure 
by defendant. — Where a railroad com- 
pany sued in the magistrate's court for 
damages to the plaintiff's land by fire, 
did not follow the procedure prescribed 
by this and the four following sections, 
it is precluded from questioning the 
plaintiff's title to the land, and the mag- 
istrate has jurisdiction notwithstanding 
the constitution of 1895, article V, § 21. 
Barnes v. Charleston & W. C. R. R. Co., 
106 S. C. 227, 90 S. E. 1017. 

Proceeding to eject tenant not in- 
cluded. — A proceeding before a trial 



justice to eject a tenant who claims title 
in himself is not an action involving the 
title to land, but a summary proceeding, 
and the said justice has jurisdiction. 
State v. Fickling, 10 S. C. 301, cited with 
approval in State v. Marshall, 24 S. C. 
507, also in Swygert v. Goodwin, 32 S. 
C. 146, 10 S. E. 933. 

Mere denial of landlord's title will not 
oust jurisdiction. — The mere attempt to 
deny a landlord's title, or the assertion 
of a superior title will not oust the mag- 
istrate of jurisdiction in a summary pro- 
ceeding. Stewart-Jones Co. v. Shehan, 
127 S. C. 451, 121 S. E. 374. See, also, 
Swygert v. Goodwin, 32 S. C. 146, 10 
S. E. 933. 

As to answer of title, see section 265 
and note thereto. 

Magistrate may allow plaintiff to dis- 
continue after dismissing complaint. — A 
magistrate, in whose court plaintiff sued 
for trespass for cutting timber, after dis- 



Page 157 Courts of Magistrates § 267 

missing complaint on motion of defend- Motion for discontinuance after de- 
ant on an answer of title to real property fense of "title to real property" within 
pursuant to this section, has discretion discretion of magistrate. — See above 
to allow plaintiff to discontinue. Thomas catchline under section 265. 
v. Shea, 111 S. C. 416, 98 S. E. 145. 

§ 265. Answer of title. — In every action brought in a court of magistrate 
where the title to real property shall come in question, the defendant may, 
either with or without other matter of defense, set forth in his answer any 
matter showing that such title will come in question. Such answer shall 
be in writing, signed by the defendant or his attorney, and delivered to 
the magistrate. The magistrate shall thereupon countersign the same and 
deliver it to the plaintiff. 
1932 Code, § 265; Civ. P. '22, § 221; Civ. P. '12, § 88; Civ. P. '02, 79; 1870 (14) § 82. 

Section does not apply to criminal the issue of title in ejectment proceed- 

cases. — This section does not apply to a ings before a magistrate by methods 

criminal case where the title to real prescribed under this and the following 

estate is an issue. State v. Richardson, 98 section cannot raise such question on 

S. C. 147, 82 S. E. 353; State v. Holcomb, appeal. Bamberg Banking Co. v. Mat- 

63 S. E. 22, 40 S. E. 1017. See § 264 and thews, 132 S. C. 130, 128 S. E. 718. 

note thereto. Where tenant did not deny execution 

Motion for discontinuance after de- of lease, and offered no evidence of du- 

fense of title to real property within ress and fraud in ejectment proceedings 

discretion of magistrate. — A magistrate before magistrate, relation of landlord 

before whom an action is brought for and tenant, which was preliminary ques- 

trespass for cutting timber, where a de- tion of fact for magistrate to determine, 

fense is interposed of "title to real prop- when question of title was raised by de- 

erty" had the right in his discretion to fendant, was established, and, as tenant 

grant an order allowing plaintiff to dis- cannot dispute landlord's title, issue of 

continue the suit. Thomas v. Shea, 111 title could not arise, so as to defeat mag- 

S. C. 416, 98 S. E. 145. istrate's jurisdiction. Bamberg Banking 

Issue of title unless raised under this Co. v. Matthews, 132 S. C. 130, 128 S. E. 

and the following section cannot be 718. See also, Burch v. Muldrow, 141 S. 

raised on appeal.— A tenant not raising C. 29, 139 S. E. 208. 

§ 266. Written undertaking by defendant. — At the time of answering the 
defendant shall deliver to the magistrate a written undertaking, executed 
by at least one sufficient surety, and approved by the magistrate, to the 
effect that if the plaintiff shall, within twenty days thereafter, deposit 
with the magistrate a summons and complaint in an action in the circuit 
court for the same cause, the defendant will, within twenty days after 
such deposit, give an admission in writing to the service thereof. 

Where the defendant was arrested in the action before the magistrate 
the undertaking shall further provide that he will at all times, render 
himself amenable to the process of the court during the pending of the 
action, and to such as may be issued to enforce the judgment therein. In 
case of failure to comply with the undertaking, the surety shall be liable 
not exceeding one hundred dollars. 

1932 Code, § 266; Civ. P. '22, § 222; Civ. P. '12, § 89; Civ. P. '02, § 80; 1870 (14) § 83. 

Issue of title unless raised under this berg Banking Co. v. Matthews, 132 S. 
section cannot be raised on appeal. Bam- C. 130, 128 S. E. 718. 

§ 267. Suit discontinued on undertaking of defendant. — Upon the de- 
livery of the undertaking to the magistrate the action before him shall be 
discontinued, and each party shall pay his own costs. The costs so paid 
by either party shall be allowed to him if he recover costs in the action, 



§ 267 Code of Civil Procedure Page 158 

to be brought for the same cause in the circuit court. If no such action 

be brought within thirty days after the delivery of the undertaking, the 

defendant's costs before the magistrate may be recovered of the plaintiff. 

1932 Code, § 267; Civ. P. '22, § 223; Civ. P. '12, § 90; Civ. P. '02, § 81; 1870 (14) § 84. 

§ 268. If undertaking not given. — If the undertaking be not delivered to 
the magistrate he shall have jurisdiction of the cause, and shall proceed 
therein; and the defendant shall be precluded, in his defense, from draw- 
ing the title in question. 
1932 Code, § 268; Civ. P. '22, §224; Civ. P. '12, § 91; Civ. P. '02, § 82; 1870 (14) § 85. 

§ 269. If plaintiff's showing develop issue of title to real property. — If, 

however, it appear on the trial, from the plaintiff's own showing, that the 
title to real property is in question, and such title shall be disputed by the 
defendant, the magistrate shall dismiss the action and render judgment 
against the plaintiff for the costs. 
1932 Code, § 269; Civ. P. '22, § 225; Civ. P. '12, § 92; Civ. P. '02, § 83; 1870 (14) 86. 

§ 270. New action. — When a suit before a magistrate shall be discon- 
tinued by the delivery of an answer and undertaking, as provided in 
sections 265, 266 and 267, the plaintiff may prosecute an action for the 
same cause in the circuit court, and shall complain for the same cause of 
action only on which he relied before the magistrate, and the answer of 
the defendant shall set up the same defense only which he made before 
the magistrate. 
1932 Code, § 270; Civ. P. '22, § 226; Civ. P. '12, § 93; Civ. P. '02, § 84; 1870 (14) § 87. 

Proceeding in circuit court must be tion brought in the circuit court must be 

based on same cause of action. — Where on the same cause of action. Notice of 

in a suit for wilfully cutting and remov- the plaintiff that the case is withdrawn 

ing timber the defendant sets up title in and discontinued, served after an order 

himself and tenders proper undertaking, of the magistrate is not binding on the 

and the magistrate endorses on sum- defendant. High v. Wingo, 84 S. C. 246, 

mons "this action is discontinued," ac- 66 S. E. 185. 

§ 271. Costs. — If the judgment in the circuit court be for the plaintiff, he 
shall recover costs; if it be for the defendant, he shall recover costs, ex- 
cept that upon a verdict he shall pay costs to the plaintiff, unless the judge 
certify that the title to real property came in question on the trial. 
1932 Code, § 271; Civ. P. '22, § 227; Civ. P. '12, § 94; Civ. P. '02, § 85; 1870 (14) § 88. 

§ 272. Answer of title as to one cause of action. — If, in an action be- 
fore a magistrate, the plaintiff have several causes of action, to one of 
which the defense of title to real property shall be interposed, and, as to 
such cause, the defendant shall deliver an answer and undertaking, as 
provided in sections 265 and 266, the magistrate shall discontinue the pro- 
ceedings as to that cause, and the plaintiff may commence another action 
therefor in the circuit court. As to the other causes of action, the magis- 
trate may continue his proceedings. 
1932 Code, § 272; Civ. P. '22, § 228; Civ. P. '12, § 95; Civ. P. '02, § 86; 1870 (14) § 89. 

§ 273. Docketing judgments — transcript — operation — sale — setting 
aside judgment — new trial. — A magistrate, on the demand of a party in 
whose favor he shall have rendered a judgment, shall give a transcript 



Page 159 



Courts of Magistrates 



§ 274 



thereof, which may be filed and docketed in the office of the circuit court 
of the county where the judgment was rendered. The time of the receipt 
of the transcript by the clerk shall be noted thereon and entered in the 
abstract of judgments, and from that time the judgment shall be a judg- 
ment of the circuit court, but no sale shall be made under any execution 
issued upon such judgment in the circuit court until the time for appealing 
from the judgment in the magistrate's court has expired, nor pending 
such appeal. If the judgment is set aside in the magistrate's court, it shall 
have the effect of setting aside the judgment filed and docketed in the 
circuit court. The filing and docketing such transcript in the circuit 
court shall not affect the right of the magistrate to grant a new trial. A 
certified transcript of such judgment may be filed and docketed in the 
clerk's office of any other county, and with like effect, in every respect, 
as in the county where the judgment was rendered. 

1932 Code, § 273; Civ. P. '22, § 229; Civ. P. '12, § 96; Civ. P. '02, § 87; 1870 (14) 
§ 90; 1887 (19) 831. 



Transcript of valid judgment only can 
be filed. — Before a transcript can be 
filed in the clerk's office there must be 
a valid judgment of the trial justice and 
if such judgment is a nullity then no 
transcript of it can impart vitality to 
it. Barron v. Dent, 17 S. C. 75. 

As to judgment constituting a lien 
after it is filed, see § 743 and note there- 
to. 

And transcript must show everything 
necessary to jurisdiction. — The tran- 
script must show everything necessary 
to give jurisdiction to the trial justice 
to make the judgment valid. Benson v. 
Carrier, 28 S. C. 119, 5 S. E. 272, citing 
Barron v. Dent, 17 S. C. 75. 

Though a showing of the filing of sum- 
mons, pleadings and proceedings imma- 
terial. — This section requires a filing of 
the transcript of the judgment and not 
of the summons, pleadings, and pro- 
ceedings, which, while the basis of, are 
not the judgment per se and such mat- 
ter need not be shown. Love v. Dorman, 
91 S. C. 384, 74 S. E. 829. 

There is no limit of time within which 
the transcript must be filed. Rhoad v. 
Patrick, 37 S. C. 517, 16 S. E. 536. 

An execution is to be issued on the 
transcript filed. — Where such transcript 
of the justice's judgment has been filed 
an execution is to be issued thereon and 
may be enforced without circuit court's 
leave at any time within ten years. 
Amick v. Amick, 59 S. C. 70, 37 S. E. 39. 

Justice has no power to vacate a judg- 
ment after filing of transcript. — A trial 



justice has no power to vacate a judg- 
ment for fraud obtained in his court 
especially after a transcript had been 
filed in the circuit court. Brown v. 
Buttz, 15 S. C. 488. 

Signature of transcript proper when 
signed by authorized clerk of justice. — 

Where a trial justice was authorized to 
appoint a clerk, a transcript of a judg- 
ment which was rendered by the said 
justice is properly signed when signed 
by his clerk. Brown v. Buttz, 15 S. C. 
488. 

A judgment so filed cannot be at- 
tacked collaterally. — Such judgment as 
filed is of the nature of a judgment of 
a court of record and general jurisdic- 
tion, and cannot be attacked collaterally 
but only by direct proceeding. Love v. 
Dorman, 91 S. C. 384, 74 S. E. 829. See, 
also, O'Rourke v. Atlantic Paint Co., 91 
S. C. 399, 74 S. E. 930; such judgments 
are entitled to all presumptions attach- 
ing to judgments of the circuit court. 
Long v. Cumings, 91 S. C. 521, 75 S. E. 
134; when such transcript is filed the 
judgment becomes the judgment of the 
court of common pleas. Rhoad v. Pat- 
rick, 37 S. C. 517, 16 S. E. 536; of the 
circuit court. Lawrence v. Isear, 27 S. C. 
244, 3 S. E. 222. 

Section inconsistent with subdivisions 
17 and 18 of next section. — It was said 
in the dissenting opinion in the case of 
Lawrence v. Isear, 27 S. C. 244, 3 S. E. 
222, that this is inconsistent with sub- 
divisions 17 and 18 of section 274. 



§ 274. Rules. 

(1) Pleadings. — The following rules shall be observed in the courts of 
magistrates: 

(1) The pleadings in the courts are: 1. The complaint by the plaintiff. 
2. The answer by the defendant. 



§ 274 Code of Civil Procedure Page 160 

(2) The pleadings may be oral or in writing; if oral, the substance of 
them shall be entered by the magistrate in his docket; if in writing, they 
shall be filed by him, and a reference to them shall be made in the docket. 

(3) The complaint shall state, in a plain and direct manner, the facts 
constituting the cause of action. 

(4) The answer may contain a denial of the complaint, or any part 
thereof, and also a notice, in a plain and direct manner, of any facts con- 
stituting a defense or counterclaim. 

(5) Pleadings are not required to be in any particular form, but must be 
such as to enable a person of common understanding to know what is in- 
tended. 

(6) Either party may demur to a pleading of his adversary, or to any 
part thereof, when it is not sufficiently explicit to enable him to under- 
stand it, or it contains no cause of action or defense, although it be taken 
as true. 

(7) If the court deem the objection well founded, it shall order the plead- 
ings to be amended; and, if the party refuse to amend, the defective plead- 
ing shall be disregarded. 

(8) Proof of service and no answer — liquidated and unlimited de- 
mand — proof of claim. — In any action on contract where a defendant does 
not appear and answer, the plaintiff may file proof of the service of the 
summons and complaint, or of the summons, on one or more of the defend- 
ants, and that no answer or demurrer has been served upon him. When 
the action is for the recovery of money only, judgment may be given for 
the plaintiff by default, if the demand be liquidated, and if unliquidated, 
and the plaintiff itemize his account and append thereto an affidavit that 
it is true and correct and no part of the sum sued for has been paid by dis- 
count or otherwise, and a copy be served with the summons on the de- 
fendant, and the defendant shall neither answer or demur, the plaintiff 
shall have judgment for the sum sued for, as in the case of liquidated de- 
mands. In all other cases where the defendant fails to appear and answer, 
the plaintiff cannot recover without proving his case. 

1887 (19) 833. 

(9) Action or defense founded upon an account. — In an action or de- 
fense founded upon an account, or an instrument for the payment of money 
only, it shall be sufficient for a party to deliver the account or instrument 
to the court, and to state that there is due to him thereon, from the adverse 
party, a specified sum, which he claims to recover or set off. 

1870 (14) 423, § 91. 

(10) Variance. — A variance between the proof on the trial and the allega- 
tions in a pleading shall be disregarded, as immaterial, unless the court 
shall be satisfied that the adverse party has been misled to his prejudice 
thereby. 

(11) Amendment of pleadings. — The pleadings may be amended at any 
time before the trial, or during the trial, or upon appeal, when, by such 
amendment, substantial justice will be promoted. If the amendment be 
made after the joining of the issue, and it be made to appear to the satis- 
faction of the court, by oath, that an adjournment is necessary to the ad- 
verse party, in consequence of such amendment, an adjournment shall be 
granted. The court may also in its discretion, require as a condition of an 



Page 161 Courts of Magistrates § 274 

amendment, the payment of costs to the adverse party. 

(12) Issuance of magistrates' executions — sales thereunder. — Execu- 
tion may be issued on a judgment heretofore or hereafter rendered in 
magistrates' courts at any time after the rendering of such judgment, and 
within three years after the rendition thereof, and shall be returnable 
sixty days from date of the same, but no sale thereunder shall be made 
until after the time for appealing has expired, nor pending such appeal: 
provided, that in cases for the claim and delivery of personal property 
where bond for the property claimed has been properly given by either 
party, the status of such property shall not be changed until after the ex- 
piration of the time for appealing has expired, or until such appeal has 
terminated. 

1887 (19) 832. 

See § 744 for issuance of executions. 

(13) Issuance of execution to sheriff. — If the judgment be docketed 
with the clerk of the circuit court, the execution shall be issued by him to 
the sheriff of the county, and have the same effect, and be executed in the 
same manner, as other executions and judgments of the circuit court. 

(14) Refusing exhibit of account or statement of nature. — The court may, 
at the joining of the issue, require either party, at the request of the other, 
at that or some other specified time, to exhibit his account, or state the 
nature thereof as far as may be in his power, and, in case of his default, 
preclude him from giving evidence of such parts thereof as shall not have 
been so exhibited or stated. 

(15) Forms of action, parties, evidence, commencement of action and 
service on corporations. — The provisions of this code of procedure, re- 
specting forms of actions, parties to actions, the rules of evidence, the times 
of commencing actions, and the service of process upon corporations, shall 
apply to these courts. 

The defendant may, on the return of process, and before answering, 
make an offer in writing to allow judgment to be taken against him for an 
amount, to be stated in such offer, with costs. The plaintiff shall there- 
upon, and before any other proceeding shall be had in the action, deter- 
mine whether he will accept or reject such offer. If he accept the offer, 
and give notice thereof in writing, the magistrate shall file the offer and 
the acceptance thereof, and render judgment accordingly. If notice of 
acceptance be not given, and if the plaintiff fail to obtain judgment for a 
greater amount, exclusive of costs, than has been specified in the offer, 
he shall not recover costs, but shall pay to the defendant his costs accru- 
ing subsequent to the offer. 

(16) Time for serving complaint — when and how shortened. — When 
twenty-five or more dollars is demanded, the complaint shall be served on 
the defendant not less than twenty days; and where less than that sum 
is demanded, not less than five days before the day therein fixed for trial: 
provided, that if the plaintiff shall make out that he is apprehensive of 
losing his debt by such delay, and the magistrate considers that there is 
good reason therefor (the grounds of such apprehension being set out in 
an affidavit and served with a copy of the complaint), he may make such 
process returnable in such time as the justice of the case may require. 

1891 (20) 1113. 

I.-S.C.-6 



§ 274 



Code of Civil Procedure 



Page 162 



(17) New trials. — Any magistrate court of this State shall have power 
to grant a new trial in any case tried in the said courts for reasons for 
which new trials have usually been granted in the courts of law of this 
State. The granting of a new trial shall in no wise affect the right and 
duty of such magistrate to change the venue of said case, as provided in 
subdivision 19 of this section. 

1876 (16) 60; 1908 (25) 1032. 

(18) Time for motion for new trial. — No motion for a new trial shall be 
heard unless made within five days from the rendering of the judgment: 
provided, that the right of appeal from the judgment shall exist for five 
days after the refusal of a motion for a new trial. 

(19) Change of venue. — Magistrates shall have the power to change the 
venue in all cases, civil and criminal, pending before them: provided, that 
in counties where they have separate and exclusive territorial jurisdiction 
the change of venue shall be to another magistrate's district in the same 
county. Whenever either party in a civil case, or the prosecutor or ac- 
cused in a criminal case, which is to be tried before a magistrate, shall file 
with the magistrate issuing the paper an affidavit to the effect that he 
does not believe he can obtain a fair trial before the magistrate, the papers 
shall be turned over to the nearest magistrate not disqualified from hear- 
ing said cause in the county, who shall proceed to try the case as if he had 
issued the papers: provided, such affidavit shall set forth the grounds of 
such belief, and in civil cases two days' notice of the application for 
change of venue shall be given to the adverse party. One such transfer 
only shall be allowed each party in any case. 

1932 Code, § 274": Civ. P. '22 § 230: Civ. P.' '12. § 97; Civ. P. '02. § 88: 1887 (19) 787; 
1896 (22) 13. 



I. In general. 
II. Rule (2). 

III. Rule (4). 

IV. Rule (5). 
V. Rule (6). 

VI. Rule (7). 



VII. Rule (8). 

VUI. Rule (9). 

IX. Rule (11). 

X. Rule (12). 

XI. Rule (13). 

XII. Rule (15). 



XIII. Rule (16). 

XIV. Rule (17). 
XV. Rule (18). 

XVI. Rule (19): 



I. IN GENERAL. 

Section must be read in connection 
with preceding section. — This section 
must be read in connection with the 
preceding section, in such a manner as 
to give full effect to both. Lawrence v. 
Isear. 27 S. C. 244. 3 S. E. 222. 
II. RULE (2). 

A natural inference that all the pro- 
ceedings may be oral. — The inference 
would be natural that all of the proceed- 
ings (notices, etc.) in such courts may 
also be oral in the absence of any statu- 
tory provisions to the contrary. Mitchell 
v. Bates. 57 S. C. 44. 35 S. E. 420. 

The defendant may plead orally to a 
written complaint. Williams v. Irbv. 15 
S. C. 458. 

Written pleadings must allege, or mag- 
istrate must enter in his docket, facts 
essential to jurisdiction; and statement 
by magistrate in his return to court of 
common pleas that plaintiff at the time 
of application for writ of ejectment 



against tenant holding over, satisfied 
him that due demand had been made for 
possession of the premises and refused, 
is not sufficient as being an entry in 
the magistrate's docket. Sessions v. 
Johnson. 185 S. C. 177. 193 S. E. 635. 
III. RULE (4). 

Notice of the interposition of a coun- 
terclaim must be given. Williams v. Irby, 
15 S. C. 458. 

As to effect of counterclaim on juris- 
diction of court of limited jurisdiction, 
see § 257. analysis line II. 

A demand originating in contract can- 
not be pleaded as a counterclaim in an 
action for the recovery of a specific 
chattel. Williams v. Irby. 15 S. C. 458. 

Killing of horse interposed as counter- 
claim to action for wages. — In an action 
to recover the balance due a farm labor- 
er for services, a counterclaim may be 
based on the allegation that he killed a 
horse while working it. Haygood v. 
Boney. 43 S. C. 63. 20 S. E. 803. 



Page 163 



Courts of Magistrates 



§ 274 



IV. RULE (5). 

Not necessary for a summons to show 
residence of defendant in county. — It is 
not necessary for a summons in a civil 
case before a magistrate to show the 
residence of the defendant in the coun- 
ty. It is sufficient if the record shows 
it. Hall v. Sullivan, 70 S. C. 397, 50 S. E. 
27. See, also, Jenkins v. Southern R. R., 
73 S. C. 292, 53 S. E. 481; Brunson v. 
Furtick, 72 S. C. 579, 52 S. E. 424, 5 
Ann. Cas. 307. 

Illustration as to the sufficiency of the 
complaint. — Where the complaint clear- 
ly showed that the plaintiff was suing 
for the per diem penalty for delay in 
transportation of freight as provided for 
by statute such complaint was suffi- 
cient. Farrell v. Atlantic Coast Line R. 
Co., 82 S. C. 410, 64 S. E. 226. 

Cited but not construed in Benson v. 
Carrier, 28 S. C. 119, 5 S. E. 272; Dillard 
v. Samuels, 25 S. C. 318; Riggs v. Wil- 
son, 30 S. C. 172, 8 S. E. 848. 

V. RULE (G). 
Technical rules of procedure are not 

applicable in magistrate's courts. — Tech- 
nical rules of procedure are not applica- 
ble in magistrate's courts and make little 
difference in what form objections are 
raised, provided they are made in due 
time. Darby v. S. Ry. Co.,' 108 S. C. 145, 
93 S. E. 716. 

Cited but not construed in Holladay v. 
Hodge, 84 S. C. 91, 65 S. E. 952; Lookout 
Mt. Medicine Co. v| Hare, 56 S. C. 456, 
35 S. E. 130. 

VI. RULE (7). 
Strickness in granting leave to amend ' 

not applied in magistrate's court. Look- 
out Mt. Medicine Co. v. Hare, 56 S. C. 
456, 35 S. E. 130. 

And order may grant leave to amend 
as the plaintiff may advise. — Order 
granting leave to amend may grant the 
plaintiff leave to amend as he may ad- 
vise. Lookout Mt. Medicine Co. v Hare, 
56 S. C. 456, 35 S. E. 130. 

Cited but not construed in Holladay v. 
Hodges, 84 S. C. 91, 65 S. E. 952. 

VII. RULE (8). 

See § 586 and the note thereto. 

The last clause of this subdivision ap- 
plies to cases of default. Barron v. Dent, 
17 S. C. 75. 

Endorsement showing hearing not suf- 
ficient to show defendant appeared and 
defended. — The fact that there were en- 
dorsements upon the summons that 
there was a hearing and examination of 
witnesses is not sufficient to show that 
the defendant appeared and defended. 
Barron v. Dent, 17 S. C. 75. 

Nor can such showing be made by 
parol testimony. — Where it appears by 
endorsements on the summons that there 
was a hearing and examination of wit- 



nesses, it cannot be shown by parol tes- 
timony that the defendant appeared and 
defended. Barron v. Dent, 17 S. C. 75. 

Question as to the necessity of a sum- 
mons in a magistrate's court. — There is 
no express requirement for a summons 
in a magistrate's court except in § 257. 
See Hasten Furniture Co. v. Southern 
Ry., 82 S. C. 238, 64 S. E. 223. 

VIII. RULE (9). 

This subdivision does not nullify the 
last clause of the preceding subdivision, 
and does not apply to default cases. Bar- 
ron v. Dent, 17 S. C. 75. 

IX. RULE (11). 

Cross reference. — As to amendments 
after demurrer, see § 493 and note there- 
to. As to amendments by the court, see 
§ 494, and note thereto. 

Discretion should be exercised in the 
promotion of justice. — Under this subdi- 
vision the magistrate should exercise 
discretion to the end that no prejudice 
shall result to the litigants by allowing 
amendments to the pleading. Holladay 
v. Hodge, 84 S. C. 91, 65 S. E. 952. 

Statute does not require service of 
amended pleadings on adverse party. — 
The statute does not require that the 
pleadings be served on the adverse party 
after amendment. Holladay v. Hodge, 84 
S. C. 91, 65 S. E. 952. 

Summons may be amended to con- 
form to proof. — It is not error for a mag- 
istrate to permit a summons to be 
amended by changing the name of the 
corporation defendant to the firm name 
to conform to the proof. Pierce v. Varn 
Byrd & Co., 76 S. C. 359, 57 S. E. 184. 

And the sheriff's return may be 
amended. — Return of a sheriff on sum- 
mons in attachment may be shown to be 
incorrect and an amendment allowed. 
Sanders v. Landreth Seed Co., 91 S. C. 
26, 74 S. E. 120. 

Applied as to amendment during trial. 
Harby v. Wells, 52 S. C. 156, 29 S. E. 
563; Lookout Mt. Medicine Co. v. Hare, 
56 S. C. 456, 35 S. E. 130. 

X. RULE (12). 

As to claim and delivery of personal 
property, see §§ 552 et seq. and notes 
there placed. 

Mere entry of judgment does not cre- 
ate a lien. — The mere entry of a judg- 
ment does not create a lien on personal 
property unless there is execution and 
levy thereunder as required by this sub- 
division and § 744. State v. McCary, 120 
S. C. 361, 113 S. E. 275. See § 273 and 
the note thereto. 

Liability of justice for damages re- 
sulting from issue of execution. — In is- 
suing an execution the trial justice acts 
judicially and is not liable in damages 
therefor unless it was done wilfully or 



§ 274 



Code of Civil Procedure 



Page 164 



corruptly. McCall v. Cohen, 16 S. C. 445; 
cited with approval in Abrams v. Car- 
lisle, 18 S. C. 242. 

Issuance of execution before expira- 
tion of period for appeal. — The question 
whether a trial justice has the right to 
have his execution executed within the 
time allowed for appeal or motion for 
new trial, was raised but not decided in 
Abrams v. Carlisle. 18 S. C. 242, 245, but 
the court did say that it would be better 
practice for him to consider the case 
still pending until such time had ex- 
pired. 

XI. RULE (13). 

As to docketing judgments, see § 273, 
and note thereto. 

Cited but not construed in Amick v. 
Amick, 59 S. C. 70, 37 S. E. 39; Bragg v. 
Thompson, 19 S. C. 572; Rhoad v. Pat- 
rick, 37 S. C. 517, 16 S. E. 536. 

XII. RULE (15). 
Liability of plaintiff for costs if he re- 
cover less than defendant's offer. — The 
plaintiff is liable for all costs of the 
case subsequent to the defendant's offer 
if he refuses to accept such offer and re- 
covers less. Williford v. Gadsden, 27 S. 
C. 87, 2 S. E. 858. 

A magistrate has power to appoint a 
guardian ad litem. — Under this section 
and § 401 a magistrate has power to ap- 
point a guardian ad litem in a suit in 
his court. Wideman v. Patton, 64 S. C. 
408, 42 S. E. 190. 

Right of cross examination of wit- 
nesses. — This section makes applicable 
in a magistrate court, the general prin- 
ciple giving a litigant the right to cross- 
examine his opponent's witnesses. See 
Dillard v. Samuels, 25 S. C. 318, 322. 

Cited but not construed in Kelley v. 
Kennemore, 47 S. C. 256, 25 S. E. 134; 
Darby v. Southern Ry. Co., 108 S. C. 145, 
93 S. E. 716. 

XIII. RULE (16). 

In general. — In the absence of fraud 
or gross imposition, the law vests the 
trial justice with the responsibility of 
deciding if these requirements as set out 
by the proviso are met. Cothran v. 
Knight, 47 S. C. 243, 25 S. E. 142. 

Summons requiring appearance on 
twentieth day void. — A summons re- 
quiring appearance on the twentieth day 
is void. Adkins v. Moore, 43 S. C. 173, 
20 S. E. 985; Paul v. So. Ky. Co., 50 S. 
C. 23, 27 S. E. 526. Cited also, in Kelley 
v. Kennemore, 47 S. C. 256, 25 S. E. 134. 

But summons to appear on twenty- 
first day is sufficient. — A summons re- 
quiring the defendant to appear on the 
twenty-first day after the service there- 
of exclusive of the day of service is 
sufficient. Wideman v. Pruitt, 52 S. C. 
84, 29 S. E. 405. 



In a case where the defendant ap- 
peared and objected to the jurisdiction 
of his person such objection being over- 
ruled the defendant withdrew from the 
case and did nothing to waive his twenty 
day notice, a summons to apear in 15 
days was illegal, and the judgment 
thereon was voidable for lack of juris- 
diction. Able v. Hall, 101 S. C. 24, 85 S. 
E. 165. 

As to computation of time, see §§ 821, 
822, and their respective notes. 

Waiver of the twenty day notice. — 
The defendant may waive the twenty 
days' notice, and if he goes to trial on 
less notice without objection, he is 
bound by the judgment. Benson v. Car- 
rier, 28 S. C. 119, 5 S. E. 272; Cavender 
v. Ward, 28 S. C. 470, 6 S. E. 302. 

Waiver of defect in summons by ap- 
pearing and pleading. — A defect in the 
summons is waived by the appearance 
and pleading to the merits. Williams v. 
Garvin, 51 S. C. 399, 29 S. E. 1; Rosa- 
mond v. Earle, 46 S. C. 9, 24 S. E. 44; 
Bird v. Sullivan, 58 S. C. 50, 36 S. E. 
494. 

Objections as to the jurisdiction of the 
court may be waived by appearing with- 
out objecting to such jurisdiction. Grant 
v. Clinton Cotton Mills, 56 S. C. 554, 35 
S. E. 193. 

Omission of name of trial justice on 
summons cured by written acceptance. 
— If the omission of the name of the 
trial justice on the original summons 
was an irregularity of procedure, it was 
cured by the written acceptance of the 
defendant. Benson v. Carrier, 28 S. C. 
119, 5 S. E. 272. 

A special appearance entered for the 
purpose of objecting to the jurisdiction 
of the magistrate precludes the consid- 
eration of any other questions. Wideman 
v. Pruitt, 52 S. C. 84, 29 S. E. 405. 

Dating is not requisite to the validity 
of a summons. — Because a summons in 
a justice's court is not dated is not 
ground for reversal, unless it gives no 
notice to the defendant of the day of 
trial in the magistrate's court. Butler 
Bros. v. Welch, 76 S. C. 130, 56 S. E. 668, 
the defendant in such case being unable 
to show that he was misled by such 
omission. 

The summons under this proviso may 
be made returnable on the same day it 
is served. Cothran v. Knight, 47 S. C. 
243, 25 S. E. 142. 

Summons alone does not give juris- 
diction. — It is not the summons alone 
which gives jurisdiction to a trial jus- 
tice. Benson v. Carrier, 28 S. C| 119, 5 
S. E. 272. 

Defendant should be given twenty 
days after summons to answer com- 
plaint. — Where a magistrate on a motion 



Page 165 



Courts of Magistrates 



§ 274 



made on the day of trial to make the 
paper served more definite as a com- 
plaint, held that the paper served was 
only a summons, and then permitted the 
plaintiff to file a complaint, he should 
have given the defendant twenty days 
in which to answer the complaint. Hast- 
en Furniture Co. v. Southern Ry., 82 S. 
C. 238, 64 S. E. 223. 

Where time for answer is shortened 
some fact must be stated to show that 
the debt would otherwise be lost. Moore 
v. Southern Ry., 76 S. C. 335, 56 S. E. 
971. 

Service of summons upon one member 
of partnership. — Service of a summons 
of a justice against a firm or one mem- 
ber thereof and a judgment following 
such service binds the partnership prop- 
erty and that of the individual served. 
Pierce v. Varn Byrd & Co., 76 S. C. 359, 
57 S. E. 184; Hasten Furniture Co. v. 
Southern Ry., 82 S. C. 238, 64 S. E. 233. 
See § 438 and the note thereto. 

Cited but not construed in Kelley v 
Kennemore, 47 S. C. 256, 25 S. E. 134 
State v. Piatt, 154 S. C. 1, 151 S. E. 206 
McDonald v. Floyd, 91 S. C. 118, 73 S. C. 
769. 

XIV. RULE (17). 

For full treatment of the subject of 
granting new trials by circuit courts, see 
§ 34 and the note thereto. 

Appeal from order granting a new 
trial lies. — An appeal lies to the circuit 
court from an order of a magistrate 
granting a new trial. Redfearn v. Doug- 
lass, 35 S. C. 569, 15 S. E. 244; cited in 
Speer v. Meschine, 46 S. C. 505, 24 S. E. 
329. 

The state has no right to appeal from 
an order granting a new trial in a case 
where the order is based in part upon 
evidentiary facts. State v. Lynn, 120 S. 
C. 258, 113 S. E. 74. 

As to statutory provisions for an ap- 
peal from a magistrate court in criminal 
cases, see § 1024 of the criminal code 
and note thereto. 

But reasons for granting a new trial 
cannot be questioned on appeal after re- 
trial. — On the failure of a party to ap- 
peal from the order of the trial justice 
granting a new trial he cannot on ap- 
peal, after retrial, question the suffi- 
ciency of the reasons for granting the 
new trial. Speer v. Meschine, 46 S. C. 
505, 24 S. E. 329. 

Motion for a new trial is not a con- 
dition precedent to an appeal. Minnick 
v. Fort, 13 S. C. 215. 

A new trial will not be granted where 
irrelevant testimony is received, over an 
objection, which could not have affected 
the verdict in any manner. Riggs v. 
Wilson, 30 S. C. 172, 8 S. E. 848. 

Subdivision said to be inconsistent 



with § 273. — It was said in the dissent- 
ing opinion in the case of Lawrence v. 
Isear, 27 S. C. 244, 3 S. E. 222, that this 
subdivision and subdivision 18 are in- 
consistent with § 273. 

Cited but not construed in O'Rourke 
v. Atlantic Paint Co., 91 S. C. 399, 74 S. 
E. 930. 

XV. RULE (18). 

Notice of motion must be given with- 
in five days. — The notice of a motion for 
a new trial must be given within five 
days. Doty v. Duvall, 19 S. C. 143. 

But hearing of a motion for a new 
trial may be after such period. — The 
hearing of the motion for a new trial 
need not be within five days after judg- 
ment. Whetstone v. Livingstone, 54 S. 
C. 539, 32 S. E. 561. 

It will be seen that the limitation is 
that the motion for a new trial must be 
made and is not that the motion must 
be decided within five days from judg- 
ment. Speer v. Meschine, 46 S. C. 505, 
24 S. E. 229. 

Motion may be made on a legal holi- 
day. — The motion for a new trial as pro- 
vided for under this subdivision may be 
made on a legal holiday. Mitchell v. 
Bates, 57 S. C. 44, 35 S. E. 420. 

When the time on notice of appeal be- 
gins to run. — Where a magistrate does 
not render judgment on the day the 
case is tried but reserves the decision, a 
party's time to appeal or move for a 
new trial does not begin until he has 
notice of trial. O'Rourke v. Atlantic 
Paint Co., 91 S. C. 399, 74 S. E. 930. 

New trial cannot be granted by magis- 
trate after docketing of judgment in cir- 
cuit court. — After the judgment has 
been docketed in the clerk's office of 
the circuit court the trial justice has no 
jurisdiction to grant a motion for a new 
trial even if the motion is heard within 
five days from the rendering of the 
judgment. Lawrence v. Isear, 27 S. C. 
244, 3 S. E. 222. 

XVI. RULE (19). 

Cross reference. — As to power of cir- 
cuit courts to change venue in civil and 
criminal cases, see § 35 and the note 
thereto. As to change of place of trial, 
see § 426 and note thereto. 

Duty is mandatory only after strict 
compliance with section. — There must 
be a strict compliance with all of the 
requirements of the subdivision before 
it becomes the mandatory duty of the 
magistrate to change the venue. State 
v. Conkle, 64 S. C. 371, 42 S. E. 173; Ba- 
cot v. Deas, 67 S. C. 245, 45 S. E. 171; 
Witte v. Cave, 73 S. C. 15, 52 S. E. 736; 
cited in Mayes v. Evans, 80 S. C. 362, 61 
S. E. 216, 657. 

But where a party files a sufficient 



§ 274 



Code of Civil Procedure 



Page 166 



affidavit a grant of change of venue is 
mandatory. — Where a party files a suf- 
ficient affidavit as provided for by this 
section, a grant of change of venue is 
mandatory. State v. Conkle, 64 S. C. 371, 
42 S. E. 173: cited in Bacot v. Deas, 67 
S. C. 245, 45 S. E. 171; Brown v. Kolb, 
92 S. C. 309, 75 S. E. 529. And it is re- 
versible error of law to proceed with 
the trial. Witte v. Cave, 73 S. C. 15, 52 
S. E. 736, and cases therein cited. 

A motion for a change of venue must 
be made before day of trial. — A motion 
to transfer a cause from one magistrate 
to another should be made before the 
day appointed for the trial unless based 
upon facts discovered later. McNair v. 
Tucker, 24 S. C. 105; cited with approval 
in Mayes v. Evans, 80 S. C. 362, 61 S. E. 
216, 657. 

But may be made after a mistrial. 
Sanders v. Hayes, 128 S. C. 181, 122 S. 
E. 572. 

Two days' notice is necessary except 
where the facts are discovered too late 
to give such notice. — The two day no- 
tice as provided for under this section, 
is necessary for a motion for a change 
of venue before a magistrate unless the 
facts stated in the affidavit show that 
the applicant became aware of the facts 
at the time when he could not have giv- 
en the two days' notice. Mayes v. Evans, 
80 S. C. 362, 61 S. E. 216, 657. 

The party must make the affidavit 
himself. — Cromer v. Watson, 59 S. C. 
488. 38 S. E. 126. 128. 

The affidavit must state reasons why 
a fair trial cannot be had. — The affidavit 
as prescribed by this section for a 
change of venue in a magistrate's court 
must state the reasons why a fair trial 
cannot be had. Bacot v. Deas, 67 S. C. 
245, 45 S. E. 171. Cited with approval in 
Mayes v. Evans. 80 S. C. 362, 61 S. E. 
216, 657. 

And it should state facts not opin- 
ions. — The affidavit should state facts 
tending to show that a fair trial cannot 
be obtained before the magistrate. It is 
not sufficient to state the mere opinion 
of the affiant. Witte v. Cave, 73 S. C. 15, 
52 S. E. 736; State v. Conkle, 64 S. C. 371, 
42 S. E. 173; Bacot v. Deas, 67 S. C. 245, 
45 S. E. 171; cited in Mayes v. Evans, 
80 S. C. 362, 61 S. E. 216. 

Such facts as should be stated in the 
affidavit provided for by this section as 
would constitute a basis for an indict- 
ment for purjury. Witte v. Cave, 73 S. 
C. 15, 5*2 S. E. 736. cited in Mayes v. 
Evans, 80 S. C. 362, 61 S. E. 216, 657; 
Brown v. Kolb, 92 S. C. 309, 75 S. E. 529. 

Statement of magistrate that appli- 
cant had no case does not warrant a 
change of venue. — An affidavit which 



stated that the magistrate had said in 
the presence of the parties that the 
party so moving for a change of venue 
did not have a case is not sufficient to 
warrant a change of venue. Mayes v. 
Evans, 80 S. C. 362, 61 S. E. 216, 657. 

Affidavits cannot be amended at hear- 
ing. — An affidavit for a change of venue 
or an action tried before a magistrate 
cannot be amended at the hearing. Bacot 
v. Deas, 67 S. C. 245, 45 S. E. 171. 

Affidavit must contain such state- 
ments as would form basis of perjury 
indictment if false; and must be stated 
with such definiteness and certainty that 
the court can determine their suffi- 
ciency; and if facts are stated on in- 
formation and belief the sources of in- 
formation and the grounds of belief 
must be staled with particularity and 
certainty. Startex Mills v. Comer, 184 
S. C. 126, 191 S. E. 903. 

Statements as to action of magistrate 
in other similar causes not sufficient to 
show prejudice against tenant in eject- 
ment action. Ibid. 

Statement of recorder that he will 
willing for city and accused to volun- 
tarily compromise case in. which ac- 
cused was charged with petit larceny, if 
accused would pay city fine of $15, does 
not show such prejudice as to require 
change of venue. City of Sumter v. 
Owens, 181 S. C. 540, 188 S. E. 192. 

Affidavit that ill feeling existed be- 
tween magistrate and defendant, grow- 
ing out of the dissatisfaction of defend- 
ant with the manner in which magis- 
trate as a practicing attorney handled 
legal matters for defendant and de- 
fendant^ withdrawal of such matters 
from magistrate's hands, was sufficient 
to entitle defendant to change of venue. 
Browning Mfg. Co., Inc. v. Brunson, 187 
S. C. 278, 197 S. E. 311. 

Where magistrate issues warrant for 
an offense beyond his jurisdiction to try, 
accused may either demand a prelim- 
inary hearing before that magistrate or 
may demand a removal of the hearing 
to the next magistrate. Clemmons v. 
Nicholson, 188 S. C. 124, 198 S. E. 180. 

But magistrate abused his discretion 
in transferring warrant to another mag- 
istrate for preliminary hearing in ab- 
sence of affidavit for removal being 
filed by accused. Ibid. 

But where neither state nor accused 
objected and both prosecutor and ac- 
cused appeared before the other magis- 
trate, second magistrate's discharge of 
accused ended the case, as respects ac- 
cused's grounds for malicious prosecu- 
tion action, since second magistrate's 
decision was not void but was at most 
only voidable. Ibid. 



Page 167 The Civil and Criminal Court of Charleston § 277 

§ 275. Waiver of jurisdiction in actions in magistrates' courts, brought 
in wrong county. — When any civil action cognizable by magistrates shall 
be brought in the wrong county, the mere failure of the defendant to 
appear shall not be deemed a waiver of any objection such defendant 
may have to the jurisdiction of the magistrate: provided, that nothing 
herein contained shall be construed to prevent any positive action of such 
defendant from which an intention to waive the jurisdictional objection 
might be inferred from operating as such waiver. 
1932 Code, § 275; Civ. P. '22, § 231; 1919 (31) 51. 



CHAPTER 6 
The Civil and Criminal Court of Charleston 

276. Established — territorial jurisdiction. 284. Clerk — stenographer. 

277. Jurisdiction. 285. Pay of iurors — sheriff's fee — docket 

278. Judge. fee. 

279 Magistrates 286. Appeals — testimony — notice. 

280. Time call docket. 287 - Ent ry of judgments, execution and 

281. Jury commissioners — drawing of transcript, 
jurors. 288. Procedure. 

282. Prosecution of criminal cases. 288-1. Transfer of causes. 

283. Contempt. 

§ 276. Established — territorial jurisdiction. — A court inferior to the cir- 
cuit courts, and to be known as "The Civil and Criminal Court of Charles- 
ton", is hereby established for the city of Charleston, and the territory 
adjacent thereto in the county ?t Charleston, west of the Cooper River. 

1932 Code, § 276; Civ. P. '22, § 232; Civ. C. '12, § 1421; Civ. P. '12, § 98; 1934 (38) 
1581. 

See Const, art. 5, § 1; art. 3, § 34 and, used in const, art. 5, § 1; Grimball v. 

art. 8, § 1 and notes thereto. C. W. Parham Co., 96 S. C. 443, 81 S. 

This section is constitutional. — This E. 186; City of Columbia v. Smith, 105 

section is constitutional as within the S. C. 348, 89 S. E. 1028. 
meaning of the term "inferior court" as 

§ 277. Jurisdiction — trials — appeals. — The said civil and criminal court 
shall have such jurisdiction as heretofore provided for by law for the 
judicial magistrate's court in said city and county, and in all civil actions 
heretofore cognizable within the said territorial limits, wherein the 
amount sued for or the value of the property claimed, exclusive of costs, 
does not exceed one thousand five hundred dollars; but such jurisdiction 
shall not extend to cases where the title to real estate is in question, 
nor to cases in chancery, and shall be concurrent with the courts of com- 
mon pleas therein, in matters within the jurisdiction of the courts herein 
established. The civil and criminal court of Charleston shall have 
jurisdiction concurrent with the court of general sessions to try all criminal 
cases arising in the territorial jurisdiction of said civil and criminal court 
of Charleston, except cases of murder, manslaughter, rape or attempt 
to rape, arson, common law burglary, bribery or perjury, and except in 
other cases in which the maximum sentence may be for a longer term 
of imprisonment than ten years, and the judge of the civil and criminal 



§ 277 Code of Civil Procedure Page 168 

court of Charleston shall have power and authority to impose sentences 
in such cases, upon guilty pleas or convictions, as provided by law. When 
the grand jury in the court of general sessions for Charleston County 
shall have returned a true bill upon the indictment in any case within the 
jurisdiction of the civil and criminal court of Charleston, as prescribed 
and limited in this section, the presiding judge of said court of general 
sessions may, upon motion of the solicitor of the circuit, make an order 
transferring any such case to the civil and criminal court of Charleston 
for trial; and the clerk of the court of general sessions shall immediately 
deliver the indictment and other papers in such case, including all ap- 
pearance recognizance filed therein, which shall thenceforth be returnable 
to and enforceable in said civil and criminal court of Charleston, together 
with a certified copy of such order, to the judge of the civil and criminal 
court of Charleston, who shall forthwith enter the same upon a "Criminal 
Docket" to be provided by the county supervisor for such purpose, and 
shall safely keep such papers. The cases shall be tried at such time as the 
judge of the civil and criminal court of Charleston shall direct, and in 
trials of such cases by jury, said jury shall consist of six (6) jurors, drawn 
as provided by law for civil cases in said court in which the amount sued 
for exceeds one hundred ($100.00) dollars and the defendant, when charged 
with misdeameanor, shall be entitled to peremptory challenges not ex- 
ceeding three, and the State three, and in the trial of cases of felony, the 
accused shall be entitled to peremptory challenges not exceeding six, and 
the State three. Said court may receive guilty pleas and impose sentences 
upon waivers of indictment and presentment in the case of misdemeanors 
within its jurisdiction, as above defined, in all cases under section 1022-1 in 
which the circuit judge resident or presiding in Charleston County is 
authorized to receive such pleas and impose sentences thereon, and in 
the same manner and under the same procedure as provided in said section 
1022-1. Upon the termination of the case, he shall return all of the papers 
therein to the clerk of the court of general sessions, who shall make a 
record in the sessions journal of said court, and in all other records of said 
court of general sessions, showing the name of each defendant, the defend- 
ant's plea or the verdict of the jury or other order of the court, and the 
final judgment, including a copy of the sentence, if any. The said clerk 
of the court of general sessions shall file the papers in the records of his 
office as a permanent part of said records, as if the cases were tried and the 
final judgment rendered in said court of general sessions; and the clerk 
of said court of general sessions shall issue to the proper officers copies 
of all sentences imposed and of all commitments ordered in the civil and 
criminal court of Charleston, as shown upon and by the indictment and 
papers filed in the said court by the judge of the civil and criminal court 
of Charleston. 

Appeals in cases tried in the civil and criminal court of Charleston 
upon indictments returned by the grand jury in the court of general ses- 
sions for Charleston County shall be direct to the Supreme Court of the 
State, in the manner now provided by law for appeals from the courts 
of general sessions to the Supreme Court. 

1932 Code, § 277; Civ. P. '22, § 233; Civ. P. '12, § 1422; Civ. C. '12, § 99; 1911 (27) 
16; 1912 (27) 585; 1934 (38) 1581; 1940 (41) 1642; 1941 (42) 82. 



Page 169 The Civil and Criminal Court of Charleston § 279 

Procedure in cases involving over Ejectment. — The civil and criminal 

$100. — Where the amount involved ex- court of Charleston is without jurisdic- 

ceeds $100.00 the rules of procedure ap- tion to try action in ejectment. Ex parte 

plicable in the court of common pleas Wingate, 166 S. C. 440, 165 S. E. 176. 

apply. Steinberg v. S. C. Power Co., 165 (Note: The above cases decided prior 

S. C. 367, 163 S. E. 881. to 1934 amendment.) 

§ 278. Judge — oath — term — election — vacancy — salary — practice of law. — 

The presiding judge of said civil and criminal court shall be an attorney- 
at-law, resident within said territory, and shall be by the Governor com- 
missioned as such, subscribe the oath of office therefor, and shall hold his 
office for a term of four years, and until his successor, who shall be elected 
in the same manner as is now provided by law for the election of a pro- 
bate judge in the county of Charleston, has been elected and qualified. In 
the absence or disability of the recorder he is authorized to preside 
over the recorder's court for the city of Charleston: provided, that in case 
of the disability, or inability from any cause, death or resignation of the 
judge of said court, the recorder of the city of Charleston shall temporarily 
fill the place, until the Governor shall fill the vacancy as provided by law 
for vacancies in a county office. He shall receive as compensation for his 
services the sum of three thousand six hundred ($3,600.00) dollars per an- 
num, from the time of the issuance of his commission, to be paid by the 
county treasurer of said county of Charleston as the judicial magistrate 
and all other magistrates therein have heretofore and are now paid, and 
he is prohibited from practicing as an attorney in said court, or any other 
court inferior to the circuit court, except the probate court. 

1932 Code, § 278; Civ. P. '12, § 234; Civ. C. '12, § 1423; Civ. P. '12, § 100; 1911 (27) 
16; 1912 (27) 585; 1913 (28) 6; 1918 (30) 755; 1934 (38) 1581; 1939 (41) 415. 

Constitution does not prescribe uni- which its jurisdiction shall not extend. 

formity of jurisdiction for this court. — City of Columbia v. Smith, 105 S. C. 

The constitution does not prescribe a 348, 89 S. E. 1028. 

uniformity of jurisdiction for a court Cited but not construed in Grimball v. 

such as is created under this section, C. W. Parham Co., 96 S. C. 443, 81 S. E. 

but only prescribes certain cases to 86. 

§ 279. Pleadings and practice — duties and powers of magistrate All sum- 
mons and other process for said the civil and criminal court of Charleston 
shall be issued exclusively by one of the ministerial magistrates in said 
territorial jurisdiction, except in cases wherein the amount sued for or the 
value of the property claimed exceeds one hundred dollars, wherein the 
practice, pleadings, forms and modes of procedure of force in the courts 
of common pleas shall be, and they are hereby, made applicable to and 
to be followed in said civil and criminal court of Charleston. The juris- 
diction, powers and duties of the said ministerial magistrates being here- 
by and in no way increased or diminished, but they are to perform the 
same to said the civil and criminal court of Charleston as they hereto- 
fore did to the judicial magistrates court, and in lieu and stead thereof, 
the jurisdiction of the magistrates in that portion of the territorial juris- 
diction of said court lying outside of the city of Charleston shall not be 
changed or affected by the provisions of this act, either as to civil or 
criminal cases. 

1932 Code, § 279; Civ. P. '22, § 235; Civ. C. '12, § 1424; Civ. P. '12, § 101; 1911 (27) 
16; 1934 (38) 1581. 

See § 277 and note thereto. 



§ 280 Code of Civil Procedure Page 170 

§ 280. Time call docket — jury trials — drawing of jurors — penalties juror 
fail serve. — On the first day of each week preceding the week in which 
jury trials are to be held, the docket shall be called, at which time any 
party in any civil cause who shall desire a jury trial, shall at that time 
make demand for the same; the jury to consist of six persons to be em- 
panelled as follows. The clerk shall write, or cause the names of the 
jurors serving to be written each on a separate paper or ballot, which 
shall be white and plain, and shall resemble each other as much as possible, 
and shall be so folded that the name written thereon shall not be visible on 
the outside, and the clerk shall place each of the said ballots, or separate 
papers, in a separate small opaque capsule, or container, which capsules, 
or containers, shall be uniform in size, shape and color; whenever a jury 
panel is to be drawn in any civil case, or when jurors shall be drawn in 
any criminal case, said capsules, or containers, shall be placed in a small 
rotating drum, cylindrical in shape, and having a handle at the end there- 
of and resting on such supports that it can be turned by means of the said 
handle, the said drums, capsules, and other equipment, to be furnished 
by the county supervisor and approved by the judge of the court and, 
when the said containers or capsules shall have been placed in the said 
drum, it shall be completely closed and securely fastened and rotated by 
means of the said handle for a sufficient length of time necessary for a com- 
plete mixing of the containers or capsules, and the clerk shall draw twelve 
(12) jurors therefrom, or, in criminal cases, the required number of jurors, 
one by one, in the presence of the court; the names of the jurors so drawn 
to be returned to the capsules and replaced in the drum when not actually 
engaged in service on a trial jury. The clerk of said court shall furnish to 
the parties, or their attorneys a list of the twelve (12) jurors so drawn 
and selected, from which list the parties, or their attorneys, shall alter- 
nately strike until there shall be but six (6) left, which shall constitute 
the jury to try the case. If any person summoned to attend upon said 
court shall neglect or refuse to appear, without sufficient legal excuse, 
he shall forfeit and pay to the said county a fine of five ($5.00) dollars, 
for which judgment may be forthwith entered in said court against him, 
and execution issued therefor, together with the sum of five ($5.00) dollars 
cost, for the officer of said court entering such judgment and levying such 
execution, and such judgment and execution shall be of the same force 
and effect as are all other judgments and executions for said court. 

1932 Code § 280; Civ. P. '22, § 236; Civ. C. '12, § 1425; Civ. P. "12, § 102; 1911 (27) 
16; 1912 (27) 586; 1913 (28) 7; 1939 (41) 415. 

See § 276 and note thereto. S. C. 348, 89 S. E. 1028 But the method 

Method of drawing jury unlike that of drawing and impaneling the jury un- 

of any other court.— The civil and crim- der this section is a mere incident of the 

inal court of Charleston is unique in court. Id. , . 

that in no other court in the state is the Cited but not construed in Grimball 

jury drawn in the manner herein pro- v. C. W. Parham Co., 96 S. C. 443, 81 b. 

vided. City of Columbia v. Smith, 105 E. 186. 

§ 281. Jury commissioners— jury list — jury box— tales box— drawing of 

jurors.— The county auditor, the county treasurer, and the judge of the 
said civil and criminal court shall constitute the jury commissioners of 
said court, to serve without compensation, provided, that in case any of said 
jury commissioners shall for any reason be unable to serve, the sheriff of 



Page 171 The Civil and Criminal Court of Charleston § 281 

Charleston County, or the county superintendent of education of said 
county, or the assistant county superintendent of education of said county, 
shall act in his place or stead. They shall during the month of June next 
succeeding every general election for state officers prepare a list of not 
less than two thousand five hundred of the qualified electors residing 
within the jurisdiction of the court, now or hereafter qualified by law to 
act as jurors, and shall cause the names on the jury list to be written, 
each one on a separate paper, or ballot, which shall be white and plain, 
and shall resemble each other as much as possible, and shall be so folded 
that the name written thereon shall not be visible on the outside, and 
shall place each of said ballots, or separate papers, in a separate small 
opaque capsule, or container, which shall be uniform in size, shape and 
color; the said capsules or containers shall be placed, with the said list, 
in a strong and substantial box, without apertures or openings when 
closed (to be known as the "Jury Box"), which box and capsules shall be 
furnished to the jury commissioners by the county supervisor of their 
county for that purpose, and which shall be approved by the judge of the 
said court. The said jury box shall be kept securely locked with three 
separate and strong locks, to be approved by the judge of the said court, 
each lock being different and distinct from the other two and requiring 
one key peculiar to itself in order to be unlocked; the key to one of the 
said three locks to be kept by the county auditor himself; the key to 
another of the three locks to be kept by the county treasurer himself; and 
the key to the third of the three locks to be kept by the other jury com- 
missioner himself, so that no two of them shall keep a similiar key, or 
keys, to the same lock, and so that all three of them must be present, to- 
gether, at the same time and place in order to lock or unlock and open 
the said jury box. It shall be the duty of the county treasurer to keep 
said jury box in his custody. Should the judge of said court approve, the 
county supervisor may purchase and supply a drum or container which 
is designated to constitute the jury box as well. At the time of placing 
the ballots and capsules in the jury box, the jury commissioners shall place 
in a special apartment in the said jury box (which special apartment shall 
be known as the "Tales Box"), the names of not less than one hundred 
(100), nor more than eight hundred (800) of such of the persons whose 
names appear on the said list as residing within five miles of the court 
house, from which tales box shall be drawn jurors to supply deficiencies 
arising from any cause or emergency during the sitting of the court. 
The names of persons placed in said tales box shall be also placed in the 
said jury box. The jury commissioners, immediately after such petit 
jurors are drawn, or, in the case of the drawing of jurors from the tales 
box, immediately after the same have been drawn, shall certify to the 
clerk of said court the list of jurors so drawn and said clerk shall issue 
his writ of venire facias for said petit jurors requiring their attendance on 
the first day of the week for which they have been drawn, or, if drawn 
from the the tales box, on such day as the court may direct; the said writ 
of venire facias shall be forthwith delivered to the sheriff of the county. 
Not less than ten (10), nor more than twenty (20) days before the first day 
of each week in which jury trials are to be held and only after five days' 
advertisement by placing notice in two public places in the jurisdiction 



§ 281 Code of Civil Procedure Page 172 

of the court, one of which shall be in the county court house, the jury com- 
missioners of the said court shall publicly and indiscriminately proceed 
to draw twenty (20) persons to serve as jurors for such week only, in the 
following manner: all of the containers or capsules containing ballots or 
separate papers shall be taken by the jury commissioners from the jury 
box, or, in the case of the drawing of jurors to supply deficiencies arising 
from any cause or emergency during the sitting of the court, from the 
tales box, and the same shall be placed in a drum, cylindrical in shape, 
and having a handle at the end thereof, and resting upon such supports that 
it can be turned by means of the said handle, the said drum and other 
equipment to be furnished by the county supervisor and approved by the 
judge of the court; and when the said containers or capsules shall have 
been placed in the said drum, it shall be completely closed and securely 
fastened and rotated by means of the said handle for a sufficient length of 
time necessary for a complete mixing of the containers or capsules, and 
the required number of jurors shall then be drawn, one by one, and the 
containers or capsules opened and checked by the commissioners to see 
whether the person so drawn has already been drawn during the calen- 
dar year, and the list of the required number of jurors so drawn and found 
not to have already been drawn in such calendar year shall be made by 
one of the commissioners and duly certified by the commissioners to the 
clerk of the said court; and after the said jurors shall have been drawn, 
the containers or capsules remaining in the drum shall be returned to 
the jury box, or to the tales box, as the case may be, and duly locked 
therein. Whenever it shall be necessary to supply any deficiencies in the 
number of jurors duly drawn, whether caused by challenge or otherwise, 
it shall be the duty of the county auditor, the county treasurer, and the 
judge of the said court to draw from the said tales box such number of 
fit and competent persons to serve as jurors as the court shall deem neces- 
sary to fill such deficiency, in which case venire shall be served and re- 
turned, and jurors required to attend on such days as the court shall direct, 
and, prouided, further, that in cases in which jury trials may be held in 
said civil and criminal court during the period in which the courts of com- 
mon pleas and general sessions for Charleston County are in session, as 
provided in section 288, jury panels for such trials may be drawn not less 
than three (3) days before such trial, and without advertisement thereof, 
where one day's notice of the time of drawing is given to the parties or 
their counsel. 

When ordered by the judge of the said civil and criminal court of 
Charleston, twenty-five (25) persons instead of twenty (20) persons shall 
be drawn to serve as jurors for the week designated in each such order. 

1932 Code, § 281; Civ. P. '22, § 237; Civ. C. '12, § 1426; Civ. P. '12, § 103; 1911 (27) 
16; 1912 (27) 587; 1934 (38) 1581; 1935 (39) 284; 1939 (41) 415; 1940 (41) 1684. 

§ 282. Prosecution of criminal cases. — In all criminal cases the prosecu- 
tion may be represented by any reputable attorney at law, employed by 
the prosecution, or the solicitor of the circuit may be required to attend 
and be in charge thereof, in the discretion of the presiding judge, or of 

his own volition. 

1932 Code, § 282; Civ. P. '22, § 238; Civ. C. '12, § 1427; Civ. P. '12, § 104; 1911 (27) 19. 



Page 173 The Civil and Criminal Court of Charleston § 286 

§ 283. May punish for contempt. — The said civil and criminal court shall 
have full power and authority to punish for contempt any contempts of its 
authority, and for such contempt may impose punishment by fine not ex- 
ceeding fifty dollars, and imprisonment not exceeding forty-eight hours, 
either or both. 

1932 Code, § 283; Civ. P. '22, § 239; Civ. C. '12, § 1428; Civ. P. '12, § 105; 1911 (27) 
19; 1912 (27) 588. 

§ 284. Clerk — stenographer. — The judge of said court shall have the 
authority to appoint a clerk of said court, who shall hold the term of office 
for two years from date of appointment; and the judge shall also appoint 
a stenographer of said court who shall take the testimony in all cases 
tried therein, both civil and criminal; the said clerk shall be invested with 
the same powers and duties as are now or which hereafter may be de- 
volved upon magistrate's constables. He shall give bond and qualify 
as a constable of said court; and shall receive as compensation for his 
services in all capacities herein mentioned, the sum of one hundred and 
twenty-five ($125.00) dollars per month, to be paid in the same manner 
as was paid the salary of the clerk of court to the judicial magistrate. The 
duties of said clerk shall be the same as those heretofore performed by 
the clerk of the judicial magistrate, and to preserve order in the court, 
and to call to his aid a person or persons to preserve order therein, who 
shall be compensated by him out of the fees and salary herein and herein- 
after provided for; and such person or persons, when so called, shall have 
the like power of the magistrate's constables. The stenographer shall re- 
ceive as compensation the sum of seventy-five ($75.00) dollars per month, 
and may call to his aid a person or persons to perform for him the duties 
of stenographer of said court at any time and such person or persons shall 
be compensated by him. 

1932 Code, § 284; Civ. P. '22, § 240; Civ. C. '12, § 1429; Civ. P. '12, § 106; 1911 (27) 
20; 1913 (27) 8; 1934 (38) 1581; 1939 (41) 415. 

§ 285. Pay of jurors — sheriff's fee summon prior — docket fee. — Jurors 
shall receive two dollars and fifty cents ($2.50) per day, to be paid by the 
county treasurer on the order of the judge and clerk of said court. The 
sheriff shall be entitled to fifty cents (.50) for each juror summoned. In 
civil cases and special proceedings, where the amount involved is less than 
one hundred dollars, there shall be paid in advance to the said clerk, the 
sum of fifty cents, and in all larger amounts the sum of one dollar, as a 
docketing fee, and in lieu of all other costs in said court whatsoever. 

1932 Code, § 285; Civ. P. '22, § 241; Civ. C. '12, § 1430; Civ. P. '12, § 107; 1911 (27) 
20; 1912 (27) 588; 1934 (38) 1581; 1939 (41) 415. 

§ 286. Appeals — testimony — notice. — In all cases in which appeals are 
taken, it shall be the duty of the regular or acting stenographer of the 
court, as the case may be, to furnish to the judge of said court, within ten 
(10) days from the service and filing of notice of appeal, a transcript of 
the testimony and proceedings in such case. 

1932 Code, § 286; Civ. P. '22, § 242; Civ. C. '12, § 1431; Civ. P. '12, 
20; 1912 (27) 589; 1934 (38) 1581; 1939 (41) 415; 1940 (41) 1795. 



§ 287 ' Code of Civil Procedure Page 174 

§ 287. Entry of judgments, execution and transcript. — All judgments 
shall be entered, execution issued thereon, or transcript thereof be made, 
as now provided by law for the judgment rendered in said judicial magis- 
trate's court. 

1932 Code, § 287; Civ. P. '22, § 243; Civ. C. '12, § 1432; Civ. P. '12, § 109; 1911 
(27) 21. 

§ 288. Rules of practice and procedure — terms — trial of cases — place hold 
court — supplies — docket. — The rules of practice, pleadings, forms and 
modes of procedure now applicable to and heretofore governing the said 
judicial magistrate's court shall be applicable to and govern the said civil 
and criminal court, except as herein otherwise provided for. Except dur- 
ing weeks set aside for jury trials, the said court shall be held on every day 
of the week except Monday, Saturday, Sunday and public holidays, and 
may be held on any secular day. The week commencing with the first 
Monday in every month, and the next two weeks shall be set aside for 
jury trials; provided, that there shall be no jury trials of civil cases during 
the months of February, April, July, August and November. Any case 
pending in said court which is not set for trial when the docket is sounded, 
or is not tried when reached for trial, shall be placed at the foot of the 
docket, unless its trial be prevented "by reason of the fact that counsel for 
a party is necessarily engaged in the trial of a case in a circuit court of 
this State, or in the federal court, or in an appellate court. The place for 
holding such court shall be provided by the county commissioners of 
Charleston County, and may be the place at which the civil and criminal 
court has heretofore been held, and all books, dockets and other stationery 
necessary for the business of said court shall likewise be provided by said 
county commissioners. It shall be the duty of the clerk to revise and 
bring to date the docket or calendar of said court immediately after 
the end of each monthly jury trial term. 

1932 Code, § 288; Civ. P. '22, § 244; Civ. C. '12, § 1433; Civ. P. '12, § 110; 1911 (27) 
21; 1912 (27) 589; 1913 (28) 8; 1934 (38) 1581; 1939 (41) 415; 1940 (41) 1796; 1941 
(42) 82. 

§ 288-1. Transfer of causes. — Any case now pending in the court of 
common pleas for Charleston County, coming within the jurisdiction of 
said civil and criminal court of Charleston, as hereinbefore amended, or 
which by amendment of the demand therein by consent of the parties 
shall then be within the jurisdiction of said court, may, by order of the 
resident or presiding judge of the ninth judicial circuit, on consent of 
counsel for all the parties thereto, be transferred to said the civil and 
criminal court of Charleston, by the filing of a copy of the record of said 
suit, authenticated by the clerk of said court of common pleas, within 
twenty (20) days after the date of such order. 
1934 (38) 1581. 



Page 175 



The City Court and Police Court of Charleston 



§ 291 



CHAPTER 7 
The City Court and the Police Court of Charleston 



289, 290. Recorder. 

291. Jurisdiction. 

292 thru 296, 303. Jury. 

297. Rules of practice. 

298. Writs and processes. 

299. Jurisdiction. 



300. Appeal. 

301. Transfer of judgments. 

302. 303. Clerk and sheriff. 
304. Fees. 

305 thru 311. Police court. 



§ 289. Court held by recorder of Charleston — salary. — The court hereto- 
fore established and called the city court of Charleston shall be held by 
the recorder of the city of Charleston; and the city council shall fix and 
provide such compensation for the recorder as may be fit and proper, and 
proportioned to the importance of his station, which compensation shall 
not be increased or diminished during his continuance in office, to be paid 
by the city. 

1932 Code, § 289; Civ. P. '22, § 245; Civ. C. '12, § 3874; Civ. C. '02, § 2777; G. S. 
2125; R. S. 2257; 1801 (7) 300; 1820 (7) 322; 1903 (24) 89. 



§ 290. Recorder — appointment — term — sessions. — The said recorder shall 

be appointed by the city council of Charleston, and hold his commission 

during good behavior; and he shall sit at such times as may be fixed by 

the ordinances of the city council of Charleston from time to time. 

1932 Code, § 290; Civ. P. '22, § 246; Civ. C. '12, § 3875; Civ. C. '02, § 2778; G. S. 
2126; R. S. 2258; 1783 (7) 99; 1856 (12) 488. 

See section 932, which provides that 
testimony of witnesses in magistrate and 
recorder court be taken in writing. 

Recorder's authority is derived from 
city council. — Under this section the re- 



corder's authority is not derived directly 
from the State, but from the city coun- 
cil, and his commission need not be is- 
sued by the State. Eggleston v. City 
Council, 1 Mill 45. 



§ 291. Jurisdiction. — The jurisdiction of the city court of Charleston shall 
be limited to the trial of causes arising under the ordinances of the city 
council of Charleston. 



1932 Code, § 



Civ. P. '22, § 247; Civ. C. '12, § 3876; Civ. C. '02, § 2779; G. S. 



2127: R. S. 2259; 1856 (12) 488; 1896 (22) 14. 

Editor's note. — It was held in the case 
of McKenzie v. Ramsay, 1 Bail, 457, that 
the jurisdiction of the city court of 
Charleston extends to actions against 
executors and administrators, in their 
administrative capacity. This case was 
decided under the act of 1801, by which 
the court was created and given concur- 
rent jurisdiction with the court of com- 
mon pleas, to a limited amount. See 
Bartlett v. Brisbane, 2 Rich. 489. The 
act declared that "all issues, contro- 
versies, and litigations in said court, 
of which the value shall exceed the 
sum allowed by law for the jurisdiction 
of a single magistrate, shall be tried by 
a jury. See City Council v. Stelges, 10 
Rich. 438, for a case applying this last 
mentioned provision. See also Bartlett 
v. Brisbane, 2 Rich. 489; Cohen v. Wig- 



fall, 8 Rich. 237, decided under the stat- 
ute of 1801. 

City court of Charleston is an inferior 
court. — In view of this section the city 
court of Charleston is an inferior court. 
City Council of Charleston v. Weller, 34 
S. C. 357, 13 S. E. 628. See City Council 
v. Ashley Phosphate Co., 33 S. C. 25, 11 
S. E. 386. 

But section does not limit jurisdiction- 
al amount. — It is to be noted that the 
jurisdictional amount of the city court 
of Charleston is not limited under this 
section. It has been held that such 
amount is not to exceed one hundred 
dollars. City Council v. Ashley Phos- 
phate Co., 33 S. C. 25, 11 S. E. 386. 

This decision was rendered in ac- 
cordance with the terms of the constitu- 
tion of 1868, which provided, in § 15, 



§ 291 



Code of Civil Procedure 



Page 176 



that the court of common pleas should 
have exclusive jurisdiction in all civil 
actions not cognizable before justices 
of the peace, and in § 22, that such jus- 
tices were to have jurisdiction in mat- 
ters involving not over $100. Attention 
is called to the early case of Thomas v. 
Watts, 1 McCord 288, decided before 
the constitution of 1868, in which it was 
held that the jurisdiction of the court 
extended to claims amounting to $500. — 
Ed. note. 

Court has jurisdiction where the cause 
of action arises within the city. — Any 
person may institute an action against 
any inhabitant of the city of Charleston 
to the extent of the jurisdiction con- 
ferred where the cause of action arises 
in the city. Green v. Smith, 1 McC. 324. 

Where the defendant resides in 
Charleston and orders goods to be sent 
to her there, the contract will be con- 
sidered as arising in Charleston, so as 
to give the court jurisdiction. Green v. 
Smith, 1 McC. 324. 

Though the defendant resides without 
the city. — Where the city council sues 
for the penalty for retailing without a 
license, this court has jurisdiction of the 
case, if the offense is committed within 
the city, whether the defendant resides 
in the city or not. City Council v. King, 
4 McC. 487. 

Under this section jurisdiction may be 
exercised over persons not resident in 
the city who violate municipal ordi- 
nances. City Council v. Pepper, 1 Rich. 
364. 

Under this section the court has no in- 
herent jurisdiction over persons not 
resident in the city. Gildersleeve v. 
Alexander, 2 Speer 298; Whiting v. 
Pritchard, 1 Rich. 304. 

Jurisdiction exists where parties re- 
side within the city. — Where the de- 
fendant drawer of a note has moved 



from New Orleans, the situs of the note, 
to Charleston, the indorsee of the note, 
also residing in Charleston, may sue in 
the city court. Moore v. Brown, 3 McC. 
9. 

An incorporated insurance company, 
having its office and doing business in 
the city of Charleston, is subject to the 
jurisdiction of the city court, and may 
be sued therein. Cromwell v. Charles- 
ton Ins. & Trust Co., 2 Rich. 512. 

Though cause of action arose outside 
of city. — The court, under this section, 
has jurisdiction of an action charging 
the administrator with a devastavit, if 
all the parties live in Charleston, and 
the proceedings are carried on there, 
though it is not shown that the waste 
was committed there. Thomas v. Dyott, 
1 McCord, 76. 

The court said in the early case of 
Brown v. Overstreet, 4 McC. 79, that 
where one of two partners resides out 
of the state, the city court of Charles- 
ton is not deprived of jurisdiction to 
try a case against the partnership in 
the person of the remaining partner. The 
court basing its opinion upon the statute 
of 1792. 

Jurisdiction under ordinances extends 
to imprisonment. — Under this section 
the city court of Charleston, under the 
authority of an ordinance of that city, 
may give judgment for the amount of 
a license tax and penalty, or imprison- 
ment for thirty days, in case of non- 
payment. Charleston v. Oliver, 16 S. C. 
47. 

No jurisdiction in cases of attachment 
— Under this section this court has no 
jurisdiction in cases of attachment. Tol- 
man v. Thompson, 2 McC. 43; Roddy v. 
Aitken, Dud. 232. 

See generally. Information v. Oliver, 
21 S. C. 318. 



§ 292. Jury. — All issues, controversies and litigations in the said court, if 
demanded by either party, shall be tried by a jury composed of six persons, 
according to the regulations and forms prescribed by law in cases of trial 
by jury, and as hereinafter provided. 

1932 Code, § 292; Civ. P. '22, § 248; Civ. C. '12, § 3877; 1903 (24) 89. 



§ 293. Jury commissioners for recorder's court of city of Charleston — 
preparation of jury box. — The mayor and the clerk of city council of 
Charleston are hereby declared to be the jury commissioners for the 
recorder's court for the city of Charleston, and shall within the first ten 
days of each year prepare and place in a box, to be known as the jury box, 
the names of five hundred citizens residing within the corporate limits 
of said city eligible to do jury duty and of good moral character, and shall 
lock and keep said jury box convenient for the drawing of a jury, as 
hereinafter specified. If the number of names in the box be reduced to 



Page 177 The City Court and Police Court of Charleston § 297 

less than two hundred names, then the box shall be refilled to the full 
number in the same manner as herein provided: provided, that no venire 
facias shall at any time issue for more than eighteen jurors to serve at one 
court, from whom a jury (or two juries, if the recorder shall regard more 
than one jury necessary for the proper dispatch of the business before the 
court), shall be empanelled; and in case of non-attendance of the jurors so 
drawn and summoned, their places may be supplied by talesmen, drawn 
in the usual mode; but no person shall be liable to serve twice until all 
the names in the said jury box shall be drawn out. 
1932 Code, § 293; Civ. P. '22, § 249; Civ. C. '12, § 3878; 1903 (24) 89; 1917 (30) 146. 

§ 294. Drawing of jury. — In all criminal cases in said recorder's court, 
in which a jury may ba demanded by either the city or the defendant, a 
jury shall be selected in the following manner: the clerk or acting clerk of 
recorder's court shall draw out of the jury box, referred to in section 293, 
eighteen ballots, each containing the name of an eligible juror, and list 
the said eighteen names in duplicate, delivering one copy of same to the 
attorney for the city, if he be present; if not, to the chief of police, or some 
officer designated by said chief, and one copy to the defendant, or his at- 
torney. 
1932 Code, § 294; Civ. P. '22, § 250; 1917 (30) 147. 

§ 295. Selection of jury — challenges. — The said clerk shall place the 
eighteen ballots, so drawn out, in some box or hat, and said clerk shall 
shake them together, and then the said clerk shall draw out one, and the 
person so drawn out shall be one of the jury, unless challenged by either 
party; and so proceed until he shall have drawn six, who shall not have 
been challenged; neither party being allowed more than six challenges; 
but, if the first twelve drawn shall be challenged and parties do not agree 
to a choice, the last six shall be the jury, and when any of the six jurors, 
so drawn, cannot be had or are disqualified by law to act in such case, 
and the parties do not supply the vacancy by agreement, the said clerk 
shall proceed to draw out of said jury box ballots for three times the num- 
ber thus deficient, which shall be disposed of and be drawn as above pro- 
vided. 

1932 Code, § 295; Civ. P. '22, § 251; 1917 (30) 147. 

§ 296. Qualifications of jurors. — All persons possessing the qualifications 
prescribed for jurors by the laws of the State, and usually residing in the 
city, or who have resided therein for four months before their being sworn, 
and there being at the time of being drawn and summoned, shall be liable 
to serve as jurors in the said court, saving and reserving to all persons all 
lawful excuse and exemptions as in other courts. 

1932 Code, § 296; Civ. P. '22, § 252; Civ. C. '12, § 3879; 1903 (24) 89. 

§ 297. City council and recorder to prescribe rules of practice, etc. 

— It shall be lawful for the city council and the said recorder to prescribe, 
and from time to time to regulate, the practice of the said court, and of 
the attorneys therein, conformably to this chapter, and as nearly as may 
be to the forms and rules used in the circuit courts of this State, and the 



§ 297 Code of Civil Procedure Page 178 

proceedings shall be the same substantially as in like cases; except in 
cases for the violation of ordinances, when imprisonment is imposed in 
addition to or in the alternative of a fine, in which case the prosecution 
shall be in the form of an information on the official oath of the corporation 
counsel. 
1932 Code, § 297; Civ. P. '22, § 253; Civ. C. '12, § 3880; 1903 (24) 89. 

Information sufficient to support con- oath of office gives the court to under- 

viction. — Under this section an informa- stand" is sufficient to a conviction im- 

tion stating that "Charles Inglesby, cor- posing imprisonment. In re Jager, 29 S. 

poration council for the city of Charles- C. 438, 7 S. E. 605. See In re Oliver, 21 S. 

ton comes into court here, and upon his C. 322. 

§ 298. Writs and processes shall be issued by clerk. — All writs and proces- 
ses shall be issued by the clerk of the said court, and shall be made re- 
turnable to the first day of the term next succeeding the issuing of the 
same. 

1932 Code, § 298; Civ. P. '22, § 254; Civ. C. '12, § 3881; 1903 (24) 89. 

Every process must show jurisdiction. Process in the city court of Charleston 

— Under this section every process is- may bear test before the accrual of the 

sued must show the jurisdiction. City cause of action. City Council v. Schmidt, 

Council v. Truchelut, 1 N. & McC. 227. 11 Rich. 343. 

§ 299. Jurisdiction. — The said court is invested with power and authority 
to grant rules, to hear and determine motions for new trials, in arrest of 
judgment, and all questions of law arising out of causes within its juris- 
diction; to issue subpoenas for the attendance of witnesses, to grant com- 
missions for the examination of witnesses, to issue executions of fieri facias 
against the real and personal property of defendants, to issue writs of 
capias ad respondendum, to punish for contempt, and also all other the 
usual process, according to the known and approved rules of the common 
law and of the acts of the Assembly in such cases provided; the recorder 
shall have the same powers in the discharge of his duties as the judges 
of the court of sessions and common pleas in like cases; but it is hereby 
declared and provided that no process or writ issuing out of the said court 
shall extend or be of force for service or execution out of the limits of the 
said city, except commissions to examine witnesses; and all writs shall 
be served and returned ten days before the sitting of the court aforesaid. 
1932 Code, § 299; Civ. P. '22, § 255; Civ. C. '12, § 3882; 1903 (24) 89. 

Cross reference. — As to power of cir- See § 1039-3 for powers of recorders in 

cuit courts to grant motion for new cities over 60,000 to suspend sentences, 

trials, see § 34 and the note thereto. As The clerk of the city court of Charles- 

to power of magistrates to grant new ton has authority to issue commissions 

trials, see § 274, subd. 17 and the note for the examination of witnesses. Havi- 

thereto. See § 291 and the note thereto, land v. Simons, 4 Rich. 338. 

$ 300. Appeal. — All parties shall have the same right of appeal to the 
Supreme Court from the decisions of the said city court, in the same form 
which is now or may be lawful for parties in the circuit courts in like 
cases, and the Supreme Court shall hear and determine such appeals in 
the same manner as appeals from the circuit court of Charleston County. 
1932 Code, § 300; Civ. P. '22, § 256; Civ. C. '12, § 3883; 1903 (24) 89. 

See § 291, and note thereto. Supreme Court. — While as a general 

Decisions of city court appealable to rule, under § 794, appeals from the de- 



Page 179 The City Court and Police Court of Charleston § 305 

cisions of an inferior court are to the Court, but it is imperatviely required to 

circuit court, the provisions of this sec- exercise such jurisdiction. City Council 

tion do not conflict, but are an excep- of Charleston v. Weller, 34 S. C. 357, 

tion, to the end that appeals from the 13 S. E. 628. 

city court of Charleston are to be heard And circuit court may not entertain 

and determined by the Supreme Court. these appeals. — Under this section the 

City Council of Charleston v. Weller, 34 right of appeal to the Supreme Court is 

S. C. 357, 13 S. E. 628. exclusive and appeal may not be had 

Which Tribunal Is Imperatively Re- to the Circuit Court. City Council of 

quired to hear such appeals. — Under Charleston v. Weller, 34 S. C. 357, 13 

this section jurisdiction is not only ex- S. E. 628. 
pressly conferred upon the Supreme 

§ 301. Judgments — transfer. — All judgments in the office of the clerk 
of the said city court, and all executions, writs and processes in the office 
of the sheriff of the city of Charleston, other than judgments, executions 
and processes arising under the ordinances of the city council of Charles- 
ton, shall be transferred, respectively, to the offices of the clerk of the 
circuit court and of the sheriff of the county of Charleston, which causes, 
judgments, executions, writs and processes shall be of like validity and 
force as if the same had originated or been sued out of the circuit court 
for the said county. 

1932 Code, § 301; Civ. P. '22, § 257; Civ. C. '12, § 3884; 1903 (24) 89. 

See Generally. City Council v. Weller, 34 S. C. 357, 13 S. E. 628. 

§ 302. Clerk and sheriff to have same powers as those of circuit court. — 

The clerk and sheriff of the said city court of Charleston shall have the 
same powers and authority in all cases within the jurisdiction of the said 
court as the clerks and sheriffs of the circuit courts. 

1932 Code, § 302; Civ. P. '22, § 258; Civ. C. '12, § 3885; 1903 (24) 89. 

§ 303. Draw jury in recorder's absence. — In case of the sickness or absence 
from the State of the recorder, they shall have power, and are hereby 
authorized and required to draw juries for the succeeding term. 
1932 Code, § 303; Civ. P. '22, § 259; Civ. C. '12, § 3886; 1903 (24) 89. 

§ 304. Fees. — The charges and fees of the several officers of the city 
court shall be the same as in the circuit court in like cases. 
1932 Code, § 304; Civ. P. '22, § 260; Civ. C. '12, § 3887; 1903 (24) 89. 

§ 305. Police court established. — There shall be established a court in the 
city of Charleston known as the police court of the city of Charleston, 
which shall be held by the recorder of the city of Charleston. The said 
recorder, and any magistrate holding the police court of the city of Charles- 
ton, in the case of absence, sickness or other disability of such recorder, 
is invested with jurisdiction to hear and determine all cases of a criminal 
nature occurring within the limits of the city of Charleston, which are 
not within the exclusive jurisdiction of the court of general sessions: that 
is to say, any such officer holding the police court shall have jurisdiction of 
all offenses committed within the limits of the city of Charleston on arrest 
by the police or municipal authorities, which may be subject to the pen- 
alties of fine or forfeiture not exceeding one hundred dollars, or imprison- 
ment, with or without hard labor, not exceeding thirty days, and may 



§ 305 Code of Civil Procedure Page 180 

impose any sentence within these limits singly or in the alternative. 
1932 Code, § 305; Civ. P. '22, § 261; Civ. C. '12, § 3888; 1903 (24) 89. 

§ 306. Examination of persons arrested in police court. — Upon the sworn 
information of any member of the police force or municipal officer, any 
such officer holding the said police court as aforesaid, shall proceed to the 
examination of any charge against any person arrested and brought before 
him, and upon the same appearing not to be within the jurisdiction of the 
said police court, he shall refer the same to a ministerial magistrate as such 
for examination, to be by such ministerial magistrate referred to the civil 
and criminal court of Charleston, or court of general sessions, as may be 
proper. 

1932 Code, § 306; Civ. P. '22, § 262; Civ. C. '12, § 3889; Civ. C. '02, § 2781; 1897 (22) 
412; 1903 (24) 89; 1911 (27) 21. 

§ 307. Forfeiture of deposit in police court. — Upon any charge made as 

above against any person released on deposit and not appearing when 

called, any such officer holding the said police court shall order the said 

deposits forfeited. 

1932 Code, § 307; Civ. P. '22, § 263; Civ. C. '12, § 3890; Civ. C. '02, § 2782; 1903 (24) 
89. 

§ 308. Jury may be demanded in police court. — In the trial of any case 
in the said police court, upon the demand for a jury, the same shall be sum- 
moned and empanelled in the said police court, in accordance with the law 
for empanelling juries in magistrates' courts. 
1932 Code, § 308; Civ. P. '22, § 264; Civ. C. '12, § 3891; Civ. C. '02, § 2783; 1903 (24) 89. 

§ 309. Stenographer transcribe testimony in police court. — In taking of 
testimony and preparation of the record in cases of appeal from the said 
police court, the transcript of the notes of the testimony taken of the trial 
by a sworn stenographer shall be held to be equivalent to the testimony 
signed by the witnesses, and the recorder is hereby authorized and em- 
powered to appoint a suitable person as official stenographer of said police 
court, who, after being duly sworn, shall take all testimony before said 
police court. 

1932 Code, § 309; Civ. P. '22, § 265; Civ. C. '12, § 3892; Civ. C. '02, § 2784; 1903 
(24) 89. 

§ 310. Police officer. — It shall be the duty of one of the officers of the 
police force to be in constant attendance on said court, and to take proper 
measures for the safe keeping of the prisoners and for carrying into effect 
the orders of said court. 

1932 Code, § 310; Civ. P. '22, § 266; Civ. C. '12, § 3893; Civ. C. '02, § 2785; 1903 
(24) 89. 

§ 311. Recorder not to appear in any cause heard by him. — The said re- 
corder shall not be permitted to plead in a superior court in any cause 
which has been argued before or adjudged by him. The recorder is hereby 
clothed with all the powers, duties and jurisdiction of a judicial magis- 
trate, except that he shall not receive any additional compensation, and 



Page 181 Attorneys, Solicitors and Counsellors § 314 

shall not have the authority of a magistrate to appoint a constable. In 
case of the sickness or other unavoidable absence of the recorder, the police 
court shall be held by one of the aldermen of the city of Charleston, or by 
one of the magistrates for Charleston County, as may be designated by the 
mayor. 

1932 Code, § 311; Civ. P. '22, § 267; Civ. C. '12, § 3894; 1903 (24) 89. 



CHAPTER 8 
Attorneys, Solicitors and Counsellors 

312. Practicing without license. 320. Graduates of South Carolina law 

313. License granted by Supreme Court. schools. 

314. Law examiners. 321. Oath and roll. 

315. Examination. 322, 323. Removal or suspension. 

316. Qualifications. 324. Speculating. 

317. Compensation of board. 325. Limit of argument. 

318. Rules. 326. Appearance by citizen. 

319. Attorneys from other States. 327 thru 333. Disbarment procedure. 

§ 312. Penalty practice unless admitted and sworn.— No person what- 
soever shall practice or solicit the cause of any other person in any court 
of this State unless he has been admitted and sworn as an attorney, under 
a penalty of five hundred dollars for every cause he shall so solicit, one- 
half to the State and the other half to him or them that will sue for the 
same. 

1932 Code, § 312; Civ. P. '22, § 268; Civ. C. '12, § 3908; Civ. C. '02, § 2811; G. S. 
2159; R. S. 2287; 1721 (7) 173. 

As to removal or suspension of attor- appearing in Workman's Compensation 
neys, see § 322 et seq. and notes there case before single commissioner, is en- 
placed, gaged in the practice of law, even 

Practicing law defined. — In re Dun- though on a salary and such appearances 

can, 64 S. C. 461, 42 S. E. 433, 83 S. C. constitute but a small part of his em- 

186, 65 S. E. 210, 24 L. R. A., N. S. 750, ployment. State v. Wells, 191 S. C. 468, 

18 Ann. Cas. 657. 5 S. E. (2d) 181. 

Claim adjuster of insurance company 

§ 313. License to be granted only by Supreme Court. — No original 
license to practice as an attorney, solicitor or counsellor shall be granted 
except by the Supreme Court. 

1932 Code, § 313; Civ. P. '22, § 269; Civ. C. '12, § 3909; Civ. C. '02, § 2812; G. S. 
2161; R. S. 2288; 1878 (16) 472. 

§ 314. Supreme Court appoint law examiners to examine applicants. — 

All applications for admission to the bar in the State shall be made by 
petition to the Supreme Court. A state board of law examiners is hereby 
created to consist of three members of the bar, of at least ten years stand- 
ing, who shall hold office for the term of three years. Said appointment 
shall be made as follows: the Supreme Court shall appoint three law ex- 
aminers, who must be actually engaged in the practice of law. Said ex- 
aminers shall hold office for one, two and three years, respectively, to be 
designated by the justices of the Supreme Court. After the first appoint- 
ment the Supreme Court shall annually appoint a member of said board 



§ 314 Code of Civil Procedure Page 182 

in the place of the examiner whose term shall expire. Members of said 
board shall be eligible to reappointment for the term of three years. In 
case of any vacancy in said board by reason of death, resignation or other- 
wise, the Supreme Court shall fill said vacancy by the appointment of a 
member of said board to serve until the expiration of the term for which 
the person so dying or resigning had been appointed. Not more than one 
member of said board shall be appointed from any one congressional dis- 
trict. 

1932 Code, § 314; Civ. P. '22, § 270; Civ. C. '12, § 3910; 1910 (26) 750. 

§ 315. Examination — report — oath. — All applications for admission to the 
bar shall be referred by the Supreme Court to the state board of law ex- 
aminers, who shall examine the applicant, touching his qualifications for 
admission to the bar. The said board shall report their proceedings in 
the examination of applicants to the Supreme Court, with any recom- 
mendations said board may desire to make. If the Supreme Court shall 
then find the applicant to be qualified to discharge the duties of an at- 
torney, and to be of good moral character and worthy to be admitted, they 
shall pass an order admitting him to practice in the courts of this State, 
on his taking and subscribing the oath required by section 26, article III 
of the Constitution, and the oath respecting dueling. 

1932 Code, § 315; Civ. P. '22, § 271; Civ. C. '12, § 3911; 1910 (26) 750. 

§ 316. Qualifications. — Every applicant for admission must present to 
the board of examiners satisfactory proof, in writing, by examination, or 
otherwise, as the board may direct, that he has had a preliminary, general 
education, equivalent to that of a graduate of a high school of this State, 
and must also present such proof as the board directs that he has studied 
law in a law school in any part of the United States, or in the office, un- 
der the direction of a member of the bar of this State, for a period of two 
years, during at least thirty-six weeks in each year: provided, that if the 
applicant produces satisfactory proof to the board that he has studied 
law in a law school in any part of the United States, or in the office, or un- 
der direction of a member of the bar of this State for a period of two 
years, during at least thirty-six weeks in each year, such applicant shall 
be eligible to admission to practice law in this State upon standing a satis- 
factory examination before said board. And each application shall be 
accompanied by an application fee of five dollars to be paid to the clerk, 
and should the applicant be admitted to practice he shall pay an additional 
fee of five dollars as an admission fee, to be paid to the state treasurer: 
provided, further, that women shall be allowed to practice law within the 
State of South Carolina under the same rules, regulations and conditions 
prescribed for the men of the said State. 
1932 Code, § 316; Civ. P. '22, § 272; Civ. C. '12, § 3912; 1910 (26) 750; 1918 (30) 779. 

§ 317. Compensation of board. — Each member of the board of law ex- 
aminers shall receive as compensation for his service the sum of one 
hundred and fifty dollars per annum, to be paid as the salaries of other 
state officers are paid. No other or further charges or fees shall be de- 



Page 183 Attorneys, Solicitors and Counsellors § 322 

manded of or collected from a person upon his admission to practice than 
the fees mentioned in section 316. 

1932 Code, § 317; Civ. P. '22, § 273; Civ. C. '12, § 3913; 1910 (26) 750. 

§ 318. Rules. — The justices of the Supreme Court shall have the power 
to pass such rules as may be necessary to carry into effect the provisions of 
this chapter, and from time to time amend said rules as occasion may re- 
quire. The said board of examiners may also make rules for their conduct 
and government, not inconsistent with the provisions of law, subject to the 
approval of the Supreme Court. 
1932 Code, § 318; Civ. P. '22, § 274; Civ. C. '12, § 3914; 1910 (26) 750. 

§ 319. Attorneys from other States. — Members of the bar of any State, 
district or territory of the United States, who, for five years after admis- 
sion, have been engaged as practitioners, judges or teachers of law, shall 
be admitted without examination on proof of good moral character, after 
becoming actual residents of this State. Members of the bar of any other 
State, district or territory of the United States, who may be employed as 
counsel in any case pending before any of the courts of this State, may be 
admitted for all the purposes of the case in which they are so employed by 
the court before which said case is pending, without examination. Noth- 
ing herein contained shall be construed to deprive courts of this State of 
the power, as at present existing, of disbarring or otherwise punishing 
members of the bar. 
1932 Code, § 319; Civ. P. '22, § 275; Civ. C. '12, § 3915; 1910 (26) 750. 

See also section 323 and notes thereto. 

§ 320. Graduates of law schools in South Carolina excepted. — The pro- 
visions of sections 314 to 319, inclusive, shall not apply to graduates of the 
law department of the University of South Carolina, or to the graduates 
of the law department of any other college or university in this State 
which is a member of the Association of American Law Schools, but such 
graduates, upon the production of diplomas of graduation and satisfactory 
evidence of good moral character, shall be admitted as heretofore. 
1932 Code, § 320; Civ. P. '22, § 276; Civ. C. '12, § 3916; 1910 (26) 750; 1925 (34) 69. 

§ 321. Oath — roll. — The oaths required to be taken by this chapter shall 
be administered in open court, and the name of the person taking the same 
entered in a roll or book kept for that purpose, and a certificate of said 
oaths shall be filed in court. 

1932 Code, § 321; Civ. P. '22, § 277; Civ. C. '12, § 3917; Civ. C. '02, § 2814; G. S. 
2162; R. S. 2290; 1868 (14) 96. 

§ 322. Removal or suspension. — Attorneys, solicitors, and counsellors may 
be removed or suspended, and, also, in aggravated cases, inprisoned, not 
exceeding twenty-four hours, by the several courts in which they have 
been admitted to practice, if, in the presence of such court, they are guilty 
of any disorderly conduct causing an interruption of business or amount- 
ing to an open and direct contempt to the court, his authority or person; 
but, subject to such removal, they shall hold their office for life. 

1932 Code, § 322; Civ. P. '22, § 278; Civ. C. '12, § 3918; Civ. C. '02, § 2815; G. S. 
2163; R. S. 2291; 1868 (14) 97. 



§ 322 



Code of Civil Procedure 



Page 184 



Punishment as for contempt. — The 

power given in this section, and § 323, 
is to punish for a criminal contempt, 
sentence for which must be rendered in 
open court. State v. Nathans, 49 S. C. 
199, 27 S. E. 52, 62. 

And judge may not suspend or disbar 
at chambers. — This section, and § 323, 
confer no power on a judge at chambers 
to suspend or disbar an attorney. State 
v. Nathans, 49 S. C. 199, 27 S. E. 52, 62. 

Since the court and not the judge is 
given power. — It is the court, and not 
the judge, under this section, that is 



given the power to remove or suspend 
an attorney. State v. Nathans, 49 S. C. 
199. 27 S. E. 52, 62. 

Whether or not the circuit court, as a 
court of record, has the inherent power 
to suspend or disbar attorneys, was sug- 
gested in the above cited case, but not 
decided. Id. 

See generally, as to disbarment of at- 
torneys, In re Duncan, 64 S. C. 461, 42 
S. E. 433, 83 S. C. 186, 65 S. E. 210, and 
State v. Jennings, 161 S. C. 263, 159 S. 
E. 627. See, also, the next succeeding sec- 
tion and the note thereto. 



§ 323. Cause of removal — entitled to be heard. — Any attorney, solicitor, 
or counsellor may be removed or suspended who shall be guilty of any de- 
ceit, malpractice, or misbehavior; but not until a copy of the charges against 
him shall have been delivered to him by the clerk of the court in which 
the proceedings shall be had, and an opportunity shall have been given 
him of being heard in his defense. 

1932 Code, § 323; Civ. P. '22, § 279; Civ. C. '12, § 3919; Civ. C. '02, § 2816; G. S. 
2164; R. S. 2292; 1868 (14) 97. 



See next forgeoing section and note 
thereto. 

Section does not affect court's common 
law power. — While this section provides 
that an attorney may be removed or sus- 
pended who shall be guilty of any deceit, 
malpractice, or misdemeanor, the statute 
neither limits the power of courts to dis- 
bar or suspend for misconduct not fall- 
ing within its terms, nor deprives the 
courts of the power to inflict a less pun- 
ishment for a misconduct not grave 
enough to warrant suspension or disbar- 
ment. State v. Jennings, 161 S. C. 263, 
159 S. E. 627; Ex parte Gadsden, 89 S. C. 
352, 71 S. E. 952. 

The last clause of § 319 further sup- 
ports the above conclusion. State v. Jen- 
nings, 161 S. C. 263, 159 S. E. 627. 

Suspension or disbarment is for the 
purpose of removing unfit persons from 
the profession. — Generally stated, the 
purpose of suspension or disbarment is 
the removal of unfit persons from the 
profession. The primary purpose is not 
punishment, but protection of the courts 
and the public from contamination with 
one who has proved himself unworthy. 
State v. 'Jennings 161 S. C. 263, 159 S. E. 
627. 

But such proceedings should be timely 
instituted. — Courts generally regard 
with disfavor disbarment proceedings 
after a great lapse of time, and prop- 
erly so; though, of course, the statute of 
limitations has never been held to ap- 
ply to a disbarment proceeding. State v. 
Jennings, 161 S. C. 263, 159 S. E. 627. 

And to warrant suspension or disbar- 
ment a bad or fraudulent motive should 
be made to appear. — The terms "mis- 
conduct" or "gross misconduct" with 



reference to a member of the bar, have 
gained by judicial interpretation a well 
defined meaning. In those cases that 
have been passed on by the Supreme 
Court, it has been held that the acts 
charged against an attorney to warrant 
his disbarment or suspension must be of 
such a character as to show that their 
commission was with a bad or fraudulent 
motive, and they must be supported by 
a clear preponderance of the evidence. 
The conduct must be so gross as to show 
a want of integrity, moral turpitude, 
depravity of character, or dishonesty. 
There should be "a clear conviction of 
moral fraud." State v. Jennings, 161 S. 
C. 263, 159 S. E. 627. 

Where an attorney is engaged in the 
business of making investments for his 
clients, and the evidence shows that 
such clients looked to him personally for 
the payment of interest on such funds, 
and not to the security on which their 
loans were made, then the fact that such 
attorney made all the investments in his 
own name, handled such funds as his 
own, and instituted and defended suits, 
in his name, pertaining to such moneys, 
do not warrant the disbarment or sus- 
pension of such attorney, although such 
conduct and practice on the part of the 
attorney merits the severe censure and 
reprimand of the court. State v. Jen- 
nings, 161 S. C. 263, 159 S. E. 627. 

But where an attorney who is guard- 
ian of the estate of an infant misman- 
ages the property of his ward, violates 
his trust by purchasing at sales conduct- 
ed by himself as guardian, with the re- 
sult that the estate of the ward is com- 
pletely wiped out, such conduct on the 
part of the attorney warrants disbar- 



Page 185 Attorneys, Solicitors and Counsellors § 326 

ment. State v. Jennings, 161 S. C. 263, "whether the lawyer accused is no long- 

159 S. E. 627. er worthy to bear the court's imprima- 

Judgment in such cases rests in discre- tur." State v. Jennings, 161 S. C. 263, 

tion of the court.— It is entirely within 159 S. E. 627. 

the discretion of the court, as the result In State v. Jennings, 161 S. C. 263, 

of such investigation, what punishment 159 S. E. 627, the rights of a third party 

shall be imposed. Complete disbar- were involved and the court in fixing 

ment, suspension or terms and condi- the punishment of the attorney sought 

tions are matters solely for the judgment to be disbarred, said that the appeal of 

of the investigating tribunal. State v such injured party should not be ig- 

Jennings 161 S. C. 263, 159 S. E. 627, nored. The judgment of the court was 

citing 6 C. J. p. 612. that the attorney be disbarred. A pro- 

As an officer of the court, an attor- viso was, however, attached which sus- 
ney is at all times subject to its control, pended the judgment of the court upon 
His admission to practice carries with compliance with named terms and con- 
it the imprimatur of the court and is ditions. 

prima facie a certificate of good moral See generally. State v. Holding, 1 McC. 

character. In a proceeding for disbar- 379; Hynmen v. Washintgon, 2 McC. 493; 

ment the court undertakes to ascertain Watson v. Bank, 5 S. C. 159. 

§ 324. Penalty for speculating. — If any attorney, solicitor, or counsellor 
shall enter into any speculating practices, by purchasing or procuring to 
be purchased, any note or other demand for the purpose of putting the 
same in suit, when otherwise the owner or holder thereof would not sue 
the same such attorney, solicitor or counsellor shall pay a fine of one 
hundred dollars, and shall thereafter be incapable of practicing as such 
in any court, until restored by the Supreme Court. 

1932 Code, § 324; Civ. P. '22, § 280; Civ. C. '12, § 3920; Civ. C. '02, § 2817; G. S. 2165; 
R. S. 2293; 1868 (14) 97. 

See generally, Cooke v. Pool, 25 S. C. 593. 

§ 325. Not to argue longer than two hours. — No attorney, solicitor, or 
counsellor shall be allowed to occupy more than two hours of the time of 
the court in the argument of any cause, unless he shall first obtain the 
special permission of the court to do so. 

1932 Code, § 325; Civ. P. '22, § 281; Civ. C. '12, § 3921; Civ. C. '02, § 2818; G. S. 
2166; R. S. 2294; 1868 (14) 97. 

Time at court's discretion in criminal Davis v. A. C. L. R. Co., 150 S. C. 130, 

cases. — This section leaves the court dis- 147 S. E. 834. 

cretionary power to fix a shorter time But it is error to limit argument to 

limit in criminal cases. State v. Black- one hour in murder case. State v. Cash, 

stone, 113 S. C. 528, 101 S. E. 845. 138 S. C. 167, 136 S. E. 222. 

And this is true of motions made in See generally. State v. Jones, 29 S. C. 

the conduct of the trial of civil cases.— 201, 7 S. E. 296. 

§ 326. Citizens may appear in person or for others without reward. — 

This chapter shall not be construed so as to prevent a citizen from prose- 
cuting or defending his own course, if he so desires, or the cause of another, 
with leave of the court first had and obtained: provided, that he declare 
on oath, if required, that he neither has nor will accept or take any fee, 
gratuity, or reward, on account of such prosecution or defense, or for any 
other matter relating to the said cause. 

1932 Code, § 326; Civ. P. '22, § 282; Civ. C. '12, § 3922; Civ. C. '02, § 2819; G. S. 
2167; R. S. 2295; 1721 (7) 173; 1868 (14) 97. 

Not applicable to corporations. State v. Wells, 191 S. C. 468, 5 S. E. (2d) 181. 



§ 327 Code of Civil Procedure Page 186 

§ 327. Disbarment procedure. — The permanent committee on grievances 
of the South Carolina Bar Association is hereby constituted a commission 
of inquiry with full power and authority to investigate as to the existence 
of any probable cause against any member of the bar of South Carolina 
as to conduct contrary to law. 
1932 Code, § 327; Civ. P. '22, § 283; 1914 (28) 588. 

§ 328. Committee may cite such member of bar to appear before it. — 

The said committee is hereby authorized and empowered, if any sworn 
complaint shall be preferred in writing before it, and filed with its chair- 
man, against any member of the bar of South Carolina for misconduct as 
an attorney at law, to cite such member of the bar to appear before it at 
such convenient place in the State as may be designated by the chairman 
of the committee to show cause why he should not be presented to the 
Supreme Court on such charges for disbarment or suspension: provided. 
that the committee shall only investigate such complaints as in the opinion 
of a majority of the committee deserve consideration. 

1932 Code, § 328; Civ. P. '22, § 284; 1914 (28) 589. 

See State v. Jennings, 161. S. C. 263, 159 S. E. 627. 

§ 329. Committee may make investigation of its own motion. — The said 
committee, without the filing of any written complaint with its chairman 
may, of its own motion upon a vote of a majority of the committee, enter 
into the investigation of any misconduct of any member of the bar with 
the same procedure as if a written complaint had been filed. 
1932 Code, § 329; Civ. P. '22, § 285; 1914 (28) 589. 

§ 330. Powers of committee. — The said committee is hereby authorized 
and empowered in the investigation of such matters as shall come before it 
to summon all necessary witnesses for such investigation, being hereby 
granted the authority to issue requisite process therefor, and that said 
witness shall be paid the same per diem and mileage as is allowed all wit- 
nesses in the courts of common pleas in this State, the same to be paid 
by the county authorities of the county from which the complaint arises, 
upon the certificate of the chairman of the said grievance committee; and 
that the same right of pay for witnesses shall exist in case of any trial 
of such matter before the Supreme Court, hereinafter referred to, upon 
the certificate of the clerk of the Supreme Court; that said committee in 
such investigation and leading up thereto, shall have the power to re- 
quire the production of all papers and documents, and the power to punish 
witnesses for contempt, or any contempt from any person that may 
arise during said investigation before the said committee; that said com- 
mittee is also authorized through its presiding member to swear all wit- 
nesses with the oath usually administered in the courts of justice in this 
State. 

1932 Code, § 330; Civ. P. '22, § 286; 1914 (28) 589. 

$ 331. Majority of committee must be present. — Before any of such 
charges as aforesaid can be investigated by said committee a majority of 
said committee, as appointed by the South Carolina Bar Association, must 
be present, and if the chairman thereof be absent the other members of 



Page 187 Administration of Justice § 334 

the committee are authorized and empowered to select a temporary chair- 
man. 

1932 Code, § 331; Civ. P. '22, § 287; 1914 (28) 589. 

§ 332. Complainants and respondents may have counsel.— At such hear- 
ings as aforesaid authorized, the complainants shall be allowed, if they 
so desire, to have counsel present and so shall the respondents, with the 
right to either side to produce witnesses to be sworn and heard according 
to such rules and regulations as may be adopted by the said committee. 
1932 Code, § 332; Civ. P. '22, § 288; 1914 (28) 590. 

§ 333. When committee to turn over records to clerk of Supreme Court. 

— If said committee, or a majority of those sitting in said investigation, 
conclude that a reasonable probability exists for the charges made, they 
shall turn over to the clerk of the Supreme Court of South Carolina the 
record in the case for such action as said court shall take thereon accord- 
ing to law and the existing laws of this State as to the regulation of the 
conduct of the members of the bar of the State of South Carolina, and 
that said court shall notify the attorney general and the solicitor of the 
circuit from which the case arises so that they shall appear before the 
court as the representatives of the State. 
1932 Code, § 333; Civ. P. '22, § 289; 1914 (28) 590. 



CHAPTER 9 
General Provisions Respecting the Administration of Justice 

334. Disqualification of judge. 341. Affirmation according to profes- 

335. Rights not affected by race or color. sion. 

336. Prosecution by federal appointees. 342 thru 344. Deposits in court. 

„„_ _ , , J , ^ 345. Effect on process of failure of court 

337. Seals of common pleas court. to ^ * 

338. Court attendants exempt from ar- 346 Transcripts of federal judgments. 

rest. 347 thru 349. Deposits in lieu of bond. 

339. Contempt. 350. Payment of small sums to minors. 

340. Breach of peace within court's 351. Time limit for filing reports by 
hearing. referees and masters. 

§ 334. When judge disqualified. — No judge or other judicial officer shall 
preside on the trial of any cause where he may be connected with either 
of the parties, by consanguinity or affinity, within the sixth degree. 
1932 Code, § 334; Civ. P. '22, § 290; Civ. C. '12, § 3923; Civ. C. '02, § 2820. 

Section not affected by Const., Art. 5, Must be alleged that relationship ex- 

§ 6. — This section is not affected by ists at time of trial. — Under this section 
Const., Art. 5, § 6, which provides that a magistrate is not shown to be disquali- 
"no judge shall preside at the trial of fied by an affidavit making out his mar- 
any cause in the event of which he may riage to defendant's niece seven years 
be interested, or when either of the before the trial where no proof was of- 
parties shall be connected with him, by fered that such relationship still existed, 
affinity or consanguinity, within such Ehrhardt v. Breeland, 57 S. C. 142, 35 
degree as may be prescribed by law." S. E. 537. 

Ex parte Kreps, 61 S. C. 29, 39 S. E. 181. Judgment rendered by disqualified 

Second cousins are within sixth de- judge voidable.— A judgment rendered 

gree.— State v. Byrd, 72 S. C. 104, 51 S. b y a judge disqualified under this sec- 

E. 542. tion is merely voidable. Ex parte Hilton, 



§ 334 



Code of Civil Procedure 



Page 188 



64 S. C. 201, 41 S. E. 978, 92 Am. St. Rep. 
800; Jeffers v. Jeffers, 89 S. C. 244, 71 
S. E. 810. 

Under the common law a judge was 
not disqualified by reason of his rela- 
tionship to the party interested, but 
might refuse to sit, and a judgment ren- 
dered by him in such a case was not void 
but only voidable. Under the common 
law a party might also waive objection 
to the disqualification of a judge. See 
Jeffers v. Jeffers for a more complete 
discussion. — Ed. Note. 

If an order grants a new trial upon 
the sole ground that the trial judge was 
connected with the deceased within six 
degrees, but the judge under § 6717, 
subd. 6, proves to be not within the 
sixth degree but within the seventh, 
then the order for new trial should be 
reversed. State v. Browning, 116 S. C. 
252, 108 S. E. 105. 

Due diligence to ascertain judge's dis- 
qualification necessary for new trial. — 
Where it does not sufficiently appear 
that the petitioner could not by due dili- 
gence have ascertained the fact of such 
disqualification under this section be- 
fore or during the trial, or before de- 
cision is rendered a motion for a new 
trial will be overruled. Jeffers v. Jeff- 
ers, 89 S. C. 244, 71 S. E. 810. 

And same "due diligence" said to be 
required under this section as necessary 
in disqualifying juror. — In the case of 
Jeffers v. Jeffers, 89 S. C. 244, 71 S. E. 
810, it was said that the same diligence 
required in ascertaining before trial a 
juror's disqualification because of re- 
lationship is required of a party in as- 
certaining a judge's disqualification un- 
der this section. 

See the provision of § 639, as to when 
objections to jurors must be made. 

But judge's knowledge of own disqual- 
ification may be grounds for new trial. 
— In the case of Jeffers v. Jeffers, 89 S. 
C. 244, 71 S. E. 810, it was said that "If 
the appellant in addition to showing the 
disqualification of the probate judge, 
and that he (the appellant) did not have 
knowledge of such fact, before the de- 



cree was rendered, had also shown that 
the probate judge knew at that time of 
his relationship to one of the parties to 
the action, then it might with good rea- 
son be contended that there should be a 
new trial." 

Objection under this section may be 
waived. — A right existing under this 
section, where the court otherwise has 
jurisdiction of the subject matter, is in 
the nature of a plea to the jurisdiction 
of the person, and may be waived. Ex 
parte Hilton, 64 S. C. 201, 41 S. E. 978. 
See Jeffers v. Jeffers, 89 S. C. 244, 71 
S. E. 810. 

See the provision of § 441, for jurisdic- 
tion of the person acquired by his volun- 
tary appearance. 

And if known to exist is waived un- 
less made before judge's oral decision. — 
Where the facts are known to the party, 
an attempt under this section to recuse 
a judge must be made before issue join- 
ed and before the trial is commenced, 
and will not be allowed where the judge 
has delivered an oral opinion and has 
but to formulate his decision in writing. 
Ex parte Hilton, 64 S. C. 201, 41 S. E. 
978. 

Such neglect of a party to raise objec- 
tion where he is aware of the relation- 
ship, will be construed as a waiver. Id. 

Judge not disqualified. — Under the 
provisions of this section where it ap- 
peared that one once removed from the 
common ancestor was the father of a 
daughter who intermarried, and was the 
mother of one who thereafter became a 
party to the action, the judge, who was 
four times removed from the common 
ancestor, was not disqualified because of 
the relationship. Ex parte Kreps, 61 S. 
C. 29, 39 S. E. 181. 

For provisions as to reckoning the de- 
grees of kindred, see § 8906. 

See generally. Town of Clinton v. 
Leake, 71 S. C. 22, 50 S. E. 541; as to dis- 
qualification of members of executive 
committee at primary election contest, 
Hyde v. Boykin, 113 S. C. 64, 101 S. E. 
41. 



§ 335. Rights in court not affected by race or color Wherever authority 

has heretofore been csnferred by law upon any free white person or per- 
sons to institute any suit or proceedings, or to prefer any information or 
complaint in any matter, civil, penal, or criminal, the same rights shall 
be enjoyed by, and the same remedies applicable to, all persons whatsoever, 
regardless of race or color subject to the same conditions, and none others. 
1932 Code, § 335; Civ. P. '22, § 291; Civ. C. '12, § 3924; Civ. C. '02, § 2821; G. S. 
2168; R. S. 2297; 1870 (14) 338. 

§ 336. Persons appointed by United States may prosecute in behalf of 
United States.— It shall and may be lawful for all and every person or per- 
sons authorized and appointed by the United States for that purpose, in 



Page 189 Administration of Justice § 339 

their name, and in their behalf, to commence and to prosecute to final 
decree, judgment, and execution, any action or actions, for the recovery 
from individuals of debts due, and effects belonging to, the United States: 
provided, that all and every such action shall be conducted in the same 
manner, and subject to the same rules and regulations, as when commenced 
by one citizen of this State against another citizen thereof, and that the 
defendant or defendants be allowed the same privileges and advantages 
as he, she, or they would be entitled to if sued by a citizen of this State. 

1932 Code, § 336; Civ. P. '22, § 292; Civ. C. '12, § 3925; Civ. C. '02, § 2822; G. S. 
2169; R. S. 2298; 1785 (4) 667. 

§ 337. Seals of courts of common pleas. — The courts of common pleas 
shall, at the expense of the State, have a seal for each county, of an im- 
pression similar to that of the court of common pleas in Charleston County, 
and uniform with that seal; except that each seal shall in the legend have 
the name of the court in which it is used. The said seals shall always be 
affixed to such proceedings of the said respective courts as may require 
the same. 

1932 Code, § 337; Civ. P. '22, § 293; Civ. C. '12, § 3926; Civ. C. '02, § 2823; G. S. 
2170; R. S. 2299; 1792, V. 211. 

§ 338. Attendants at courts exempt from arrest. — All persons necessarily 
going to, and attending on, or returning from, the courts of record of this 
State (allowing thirty miles per day for the traveling of such persons), 
shall be free from arrest, except on criminal process for treason, felony, 
or breach of the peace. 

1932 Code, § 338; Civ. P. '22, § 294; Civ. C. '12, § 3927; Civ. C. '02, § 2824; G. S. 
2171; R. S. 2300, 1785 (7) 219; 1798 (7) 286; 1819 (11) 41. 

Exemption from arrest is court's priv- And one court will not allow arrest 

ilege. — Exemption from arrest is the by its process of a witness of another 

privilege of the court, and not of the court. — Vincent v. Watson, 1 Rich. 194. 

party; and indulgence will not be ex- The privilege is limited to exemption 

tended to him further than necessary of the person from arrest, and does not 

and expedient. Hunter v. Cleveland, 1 invalidate service of process at same 

Brev. 167. time. Sadler v. Ray, 5 Rich. 523. 

§ 339. Penalty for contempt of court — offenders to be heard. — In case any 
person shall commit any misbehavior or contempt in any court of judica- 
ture in this State, by word or gesture, it shall and may be lawful for the 
judges of every such court to set a fine on such offender, in any sum not 
exceeding fifty dollars, for the use of this State, and may commit the 
offender till payment; but if any person shall in the presence and during 
the sitting of the court, strike or use any violence therein, such person 
shall be fined at the discretion of the said court, and shall be committed 
till payment: provided, that no citizen of this State shall be sent to jail 
for any contempt of court, or supposed contempt of court, committed 
during the sitting of the court, and in disturbance of the court, until he 
be brought before the court, and there be heard by himself or counsel, 
or shall stand mute. 

1932 Code, § 339; Civ. P. '22, § 295; Civ. C. '12, § 3928; Civ. C. '02, § 2825; G. S. 
2172; R. S. 2301; 1731 (3) 283; 1811 (5) 642. 

Proceedings by rule is proper in cases In cases here mentioned it need not 

of contempt. — State v. Hunt, 4 Strob. be on oath. — State v. Blackwell, 10 S. 
322. C. 35. 



§ 339 Code of Civil Procedure Page 190 

Decision thereon is appealable. — State 410; as to circuit courts, State v. Black- 

v. Hunt, 4 Strob. 322. well, 10 S. C. 35; In re Corbin, 8 S. C. 

Sentence of 90 days in county jail is 390; Lott v. Sandifer, 2 Mill 167; John- 
justified for juror discussing case on son v. Wideman, Dud. 70; State v. Hunt, 
which he was serving. State v. Babb, 4 Strob. 322; as to attorneys, In re Cor- 
161 S. C. 305, 159 S. E. 633. bin, 8 S. C. 390; State v. Hunt, 4 Strob. 

See generally, as to magistrate courts, 322; as to witnesses, Lott v. Sandifer, 2 

Lining v. Bentham, 2 Bay 1; State v. Mill 167; Johnson v. Wideman, Dud. 70; 

Johnson, 2 Bay 385; State v. Applegate, as to others, State v. Blackwell, 10 S. C. 

2 McC. 110; Edmundson v. Frean, 2 Hill, 35. 

§ 340. Breach of peace within hearing of court. — When any affray shall 
happen during the sitting of any court within this State, and within the 
hearing or to the disturbance of the court, the court shall order the sheriff, 
or other lawful officer, to take the affrayers, or other disturbers of the 
peace, or those guilty of contempt, and bring the offender or offenders 
before the court, and the court shall make such order or orders thereon 
as is or may be consistent with law, justice, and good order. 

1932 Code, § 340; Civ. P. '22, § 296; Civ. C. '12, § 3929; Civ. C. '02, § 2826; G. S. 
2173; R. S. 2302; 1811 (5) 642. 

§ 341. Witness, juror, or party, may affirm, according to his profession. — 

Any juror, witness, or party to any proceeding, in any and all courts of 
this State, may make solemn and conscientious affirmation and declara- 
tion, according to the form of his religious belief or profession, as to any 
matter or thing whereof an oath is required; and such affirmation and 
declaration shall be held as valid and effectual as if such person had taken 
an oath on the Holy Evangelists. 

1932 Code, § 341; Civ. P. '22, § 297; Civ. C. '12, § 3930; Civ. C. '02, § 2827; G. S. 
2174; R. S. 2303; 1721 (3) 281. 

§ 342. Moneys paid into court to be deposited. — All moneys except fines 
and penalties paid under sentence in criminal cases, which shall be paid 
into the circuit or probate courts of the State, or received by the officers 
thereof in causes pending therein, shall be immediately deposited in some 
incorporated state bank or national bank within the circuit, of good credit 
and standing; or if there be no such bank within the circuit, then in such 
bank nearest to the place of holding the circuit, in the name and to the 
credit of the court. 

1932 Code, § 342; Civ. P. '22, § 298; Civ. C. '12, § 3931; Civ. C. '02, § 2828; G. S. 
2175; R. S. 2304; 1868 (14) 16. 

§ 343. How money deposited to be drawn — proviso. — No money deposit- 
ed as aforesaid shall be drawn from said banks, except by order of the 
judge of said courts, respectively, in term or in vacation, to be signed by 
such judge, and to be entered and certified of record by the clerk; and 
every such order shall state the cause in or on account of which it is 
drawn: provided, that money paid into court to be immediately paid out 
need not be so deposited, but shall be paid upon order of the court. 

1932 Code, § 343; Civ. P. '22, § 299; Civ. C. '12, § 3932; Civ. C. '02, § 2829; G. S. 
2176; R. S. 2305; 1868 (14) 16. 

S 344. Clerk to obey order of court to deposit — penalty. — -If any clerk of 
such courts, or other officers thereof, having received such moneys as 
aforesaid, shall refuse or neglect to obey the order of such court, for de- 



Page 191 Administration of Justice § 347 

positing the same as aforesaid, such clerk or other officer shall be forth- 
with proceeded against by attachment for contempt. 

1932 Code, § 344; Civ. P. '22, § 300; Civ. C. '12, § 3933; Civ. C. '02, § 2830; G. S. 
2177; R. S. 2306; 1868 (14) 16. 

§ 345. Effect on writs, etc., of failure of court to sit as required by law. — 
No process pending in any court shall be discontinued for or by reason of the 
failure to hold the court upon the day appointed by law; but in such case, 
all suits, process, matters and things depending shall be made to the next 
succeeding court in course in the same manner as if such succeeding court 
had been the same court to which such process stood continued, or such 
returns or appearances should have been made; and recognizances, bonds 
and obligations for appearances, and all returns shall be of the same force 
and validity for the appearance of any person or persons at such succeed- 
ing court, and all summons for witnesses as effectual as if the succeeding 
court had been expressly mentioned therein; and all causes depending 
on the docket, and undetermined at any adjournment to the court in 
course, shall stand continued in the same order to such court as fully as 
if such causes were called over and continued by order of court. 

1932 Code, § 345; Civ. P. '22, § 301; Civ. C. '12, § 3934; Civ. C. '02, § 2831; G. S. 
2178; R. S. 2307; 1785 (7) 218. 

§ 346. Transcripts of United States courts' decrees and judgments filed in 
clerk's office, etc. — Transcripts of any judgments or decrees rendered in 
a circuit or district court of the United States within this State, or of any 
other federal court which, by act of Congress, may create a lien, may be 
filed in the office of the clerk of court of any county within this State, 
and when so filed, shall be entered by the clerk of the court upon the book 
of abstracts of judgments and duly indexed in the same manner as provided 
by law in reference to judgments rendered by the courts of this State; and 
when so entered upon the book of abstracts of judgments and duly indexed, 
such judgment shall constitute a lien upon the real estate of the judgment 
debtor to the same extent, and with the same effect, as provided by law 
in reference to judgments and decrees rendered by the courts of this State. 
1932 Code, § 346; Civ. P. '22, § 302; Civ. C. '12, § 3935; Civ. C. '02, § 2832; 1894 (22) 
718; 1928 (35) 1214. 

§ 347. Money may be deposited with officer of courts in lieu of bond. — 

Whenever in any civil or criminal proceedings in any of the courts of this 
State a bond, recognizance or undertaking is authorized or required to 
be given, it shall and may be lawful for the party or parties authorized 
or required to give the same to deposit in lieu thereof a sum of money, in 
lawful money of the United States of America, equal in amount to the 
bond, recognizance or undertaking so required or authorized to be given; 
and such sum of money, when deposited as in this section provided, shall 
be held and taken as equivalent in all respects to the giving of such bond, 
recognizance or undertaking. 

1932 Code, 347; Civ. P. '22, § 303; Civ. C. '12, § 3936; Civ. C. '02, § 2833; 1897 (22) 
424. 



§ 347 Code of Civil Procedure Page 192 

Section to be strictly construed. — One on obtaining an attachment, and the 

purpose of this section is to relieve a note thereto. 

plaintiff in attachment proceedings of Thus a check is not "lawful money of 
the absolute requirement to enter into the United States." — The prevailing con- 
written undertaking with proper surety ception of the phrase "lawful money of 
as provided for in § 530, but one may the United States," as used in this sec- 
be relieved from such condition preced- tion, is money in circulation by sanction 
ent only by strictly pursuing the terms of the laws of the United States, and a 
of this section. McDaniel v. Patterson, check is not such lawful money. Mc- 
159 S. C. 378, 157 S. E. 72. Daniel v. Patterson, 159 S. C. 378, 157 

See § 530 as to the security required S. E. 72. 

§ 348. To whom a deposit in lieu of bond must be paid. — Whenever such 
bond, recognizance or undertaking is required or authorized to be given in 
any civil or criminal proceedings in the courts of common pleas or general 
sessions of this State, the said sum of money deposited in lieu thereof 
shall be paid to the clerk of the court of common pleas and general sessions 
in which said proceeding is pending; and whenever such bond, recognizance 
or undertaking is authorized or required to be given in the Supreme Court 
of this State, the said sum of money shall be paid to the clerk of the 
Supreme Court; and whenever such bond, recognizance or undertaking is 
authorized or required to be given in any civil proceeding in the probate 
courts of this State, the said sum of money shall be paid to the judge of 
the court of probate for the county in which the said proceeding is pend- 
ing; and whenever such bond, recognizance or undertaking is authorized 
or required to be given in any civil or criminal proceeding in a magistrate's 
court or other court of inferior jurisdiction, such sum of money shall be 
paid to the clerk of the court of common pleas and general sessions for 
the county in which such magistrate's court or other court of inferior juris- 
diction shall be. 

1932 Code, § 348; Civ. P. '22, § 304; Civ. C. '12, § 3937; Civ. C. '02, § 2834; 1897 
(22) 424. 

§ 349. Money deposited in lieu of bond. 

(1) Receipt. — Whenever any sum of money is so deposited in lieu of a 
bond, recognizance or undertaking, the party depositing the same shall be 
entitled to a receipt therefor, stating that the same has been deposited, and 
is held for the same purpose as would have been specified and conditioned 
in the bond, recognizance or undertaking in lieu whereof the said sum of 
money is so deposited. 

(2) When pay back. — The party or parties so depositing a sum of money 
in lieu of a bond, recognizance, or undertaking shall be entitled upon ap- 
plication to the respective courts wherein such deposits have been made, 
and subject to the order of which such funds are held, to receive back the 
same whenever the purposes for which the same have been received and 
deposited have been accomplished and the parties are entitled to repay- 
ment thereof. 

1932 Code, § 349; Civ. P. '22, § 305; Civ. C. '12, § 3938; Civ. C. '02, § 2835; 1897 
(22) 424. 

§ 350. Courts may order payment of money to minors, etc. — In cases 
where a minor becomes entitled to a sum of money not exceeding two hun- 
dred dollars in the settlement of estates, or under the judgment, order 
or decree of any court, and such minor has no general or testamentary 
guardian to whom such sum may be paid, and whose estate, however 



Page 193 Administration of Justice § 351 

derived, is, in the judgment of the court in which the settlement is made, 
or the judgment, order or decree is rendered, too small to warrant the 
expense of the appointment of a guardian, it shall and may be lawful for 
such court, or the judge thereof, to make an order for the same to be paid 
to the minor, or the father or mother of such minor, or if the father and 
mother be dead, to some other person for the benefit of such minor as to 
such court or judge may seem best. 

1932 Code, § 350; Civ. P. '22, § 306; Civ. C. '12, § 3939; Civ. C. '02, § 2836; 1900 
(23) 348; 1901 (28) 635; 1910 (26) 683; 1933 (38) 269. 

§ 351. Time prescribed within which masters and referees must file re- 
ports — penalty — extension. — In all cases referred to masters and referees 
by the courts of common pleas, as now provided by law, the masters or re- 
ferees shall make and file with the clerks of the courts of common pleas 
of their respective counties their reports within sixty days from the time 
the action shall be finally submitted to them, and in default thereof they 
shall not be entitled to any fees: provided, that nothing herein contained 
shall prevent parties to said action or their attorneys from extending the 
time by mutual consent in writing. 

1932 Code, § 351; Civ. P. '22, § 307; Civ. C. '12, § 3940; Civ. C. '02, § 2837; 1893 (21) 
399. 



§ 352 



Code of Civil Procedure 



Page 194 



PART 2 
Civil Actions 



Title 


3. 


Title 


4. 


Title 4-A. 


Title 


5. 


Title 


6. 


Title 


7. 


Title 


8. 


Title 


9. 


Title 


10. 


Title 


11. 


Title 


12. 


Title 


13. 


Title 


14. 


Title 


15. 


Title 


16. 


Title 


17. 


Title 


18. 


Title 


19. 



General Provisions, § 352. 

Time of Commencing Civil Actions, § 355-1. 

Actions for Services against Counties over 85,000, § 396-1. 

Parties to Civil Actions, § 397. 

Place of Trial of Civil Actions, § 420. 

Manner of Commencing Civil Actions, § 427. 

Pleadings in Civil Actions, § 454. 

Provisional Remedies in Civil Actions, § 499. 

Trial and Judgment in Civil Actions, § 585. 

Witnesses and Evidence, § 665. 

Executions and Proceedings Supplementary to Execution, 

§ 737. 

Costs in Civil Actions, § 756. 

Appeals in Civil Actions, § 771. 

Miscellaneous Provisions Respecting Civil Actions, § 810. 

Actions in Particular Cases and Extraordinary Remedies, 

§ 826. 

Proceedings for Relief of Persons Arrested in Civil Actions, 

§ 851. 

Remedies Relating to Real Property, § 870. 

Definitions and General Principles, § 897. 



TITLE 3 
General Provisions 



CHAPTER 10 
General Provisions 



352. Form of action. 

353. Designation of parties. 



354. Action on judgment. 

355. Feigned issues. 



§ 352. One form of action established. — There shall be in this State but 
one form of action for the enforcement or protection of private rights and 
the redress of private wrongs, which shall be denominated a civil action. 



1932 Code, § 352; Civ. 
§ 92. 



P. '22, § 308; Civ. P. '12, § 114; Civ. P. '02, § 89; 1870 (14) 



For statutory definition of term "ac- 
tion," see § 2 of the Code. 

In general. — In the early case of 
Southern Porcelain Mfg. Co. v. Thew, 
5 S. C. 5, it is said that an action does 
not lie under the Code of Procedure un- 
less a cause of action exists which would 



have maintained an action at law or a 
bill in equity before its adoption. 

Such rights must be enforced or pro- 
tected by the same form of action. — 
Whether legal or equitable, such rights 
must alike be enforced or protected by 
the same form of action. Chapman v. 



Page 195 



Civil Actions 



355 



Lipscomb, 18 S. C. 222; Scaife v. Thomp- 
son, 15 S. C. 337; Parker v. Jacobs, 14 
S. C. 112. 

No change is made between legal and 
equitable causes of action. — Sullivan v. 
Sullivan, 20 S. C. 509; Chapman v. Lips- 
comb, 18 S. C. 222. 

But while causes of action are dis- 
tinct from remedies, they are enforcible 
by the one form of remedy. — Emory v. 
Hazard Powder Co., 22 S. C. 476. 

Section 374 construed with instant 
section. — In ascertaining the true mean- 
ing of the term "actions" as used in § 
374, it has been said that that section 
must be construed with the present sec- 
tion. See Walsh v. Evans, 112 S. C. 131, 
99 S. E. 546. See note of this case under 
§ 374, analysis line III, B, 3, a. 

Tort action by wife against husband. 
■ — This section furnishes a basis for the 
holding that a wife may maintain an 
action in tort against her husband for 
willfully beating her. Prosser v. Prosser, 
114 S. C. 45, 102 S. E. 787. Such a suit is 
a thing in action, which is a property 
right. Id. 

A proceeding by the sinking fund 



commissioners to escheat an estate as 

that of an intestate leaving no heirs is 
not an action within the meaning of that 
term as used in this section. In re Per- 
cival's Estate, 108 S. C. 39, 93 S. E. 243. 

Separate action for disputed property 
rights not determined in former action. 
—Under this section and §§ 427, 454, 750, 
751, 752, a third person claiming prop- 
erty rights which have not been passed 
upon in the original action under which 
the execution is issued should not be de- 
prived either of his day in court or of the 
right of trial in the form prescribed by 
law for a regular judicial procedure. 
Palmetto Bank & Trust Co. v. McCown- 
Clark Co., 143 S. C. 98, 141 S. E. 155. 

Defendant is required to plead all his 
defenses, legal or equitable, in same ac- 
tion. Frederick v. Chapman, 144 S. C. 
137, 142 S. E. 247. 

Vexatious or unnecessary action is not 
permitted. Ex parte Fant, 147 S. C. 167, 
145 S. E. 34. 

An equitable defense can be set up in 
a law case. Bell v. Mackey, 191 S. C. 
105, 3 S. E. (2d) 816. 



§ 353. Parties how designated. — In such action the party complaining 
shall be known as the plaintiff, and the adverse party as the defendant. 

1932 Code, § 353; Civ. P. '22, § 309; Civ. P. '12, § 115; Civ. P. '02, § 90; 1870 (14) 
§ 93. 



§ 354. Action on judgment. — No action shall be brought upon a judg- 
ment rendered in any court in this State, except a court of magistrate, 
between the same parties, without leave of the court, or a judge thereof, 
at chambers, for good cause shown, or notice to the adverse party; and no 
action on a judgment rendered by a magistrate shall be brought in the 
same county within five years after its rendition, except in case of his 
death, resignation, incapacity to act, or removal from the county, or that 
the process was not personally served on the defendant, or on all the 
defendants, or in case of the death of some of the parties, or where the 
docket or record of such judgment is or shall have been lost or destroyed. 

1932 Code, § 354; Civ. P. '22, § 310; Civ. P. '12, § 116; Civ. P. '02, § 91; 1870 (14) 
§ 94; 1912 (27) 536. 



Section applies to judgment by con- 
sent. — An action may be brought upon 
a judgment or a decree in equity, 
whether it be by consent or not, though 
leave of the court is necessary under this 
section. Green v. Rembert, 108 S. C. 
203, 93 S. E. 769. 

Suit to enforce judgment is not an 
"action on judgment." — A suit to en- 



force a judgment against land in pos- 
session of devisees of a judgment debtor 
is not an action "on the judgment" 
within the meaning of this section, and 
therefore leave of the court to com- 
mence such a suit is not necessary. 
Brock v. Kirkpatrick, 60 S. C. 322, 38 
S. E. 779, 85 Am. St. Rep. 847. 



§ 355. Feigned issues not allowed. — Feigned issues shall not be allowed, 
and, instead thereof, or when a question of fact, not put in issue by the 
pleadings, is to be tried by a jury, an order for the trial may be made 



§ 355 



Code of Civil Procedure 



Page 196 



stating distinctly and plainly the question of fact to be tried; and such 
order shall be the only authority necessary for a trial. 

1932 Code, § 355; Civ. P. '22, § 311; Civ. P. '12, § 117; Civ. P. '02, § 92; 1870 (14) 
{ 95. 



TITLE 4 
Time of Commencing Civil Actions 

Chapter 11. General Provisions, § 355-1. 

Chapter 12. Actions for the Recovery of Real Property, § 371. 

Chapter 13. Actions Other than for Recovery of Realty, § 386. 



CHAPTER 11 
General Provisions 



355-1. Effect of title. 

356. Time for commencing actions. 

357. When action commenced. 

358. Defendant out of State. 

359. 364 thru 365. Persons under disa- 
bility. 

360. Death of person entitled. 

361. Aliens. 



362. Reversal of judgment. 

363. Injunction staying action. 

366, 367. When title not applicable. 

368. New promises. 

369. Liability of partners after dissolu- 

tion. 

370. Part payment or acknowledgment. 



§ 355-1. Limitation not to apply when action commenced or right of 
action accrued. — The provisions of this title shall not extend to actions 
already commenced, or to cases where the right of action has already ac- 
crued; but the statutes then in force shall be applicable to such cases, ac- 
cording to the subject of the action and without regard to the form. 

1932 Code, § 355A; Civ. P. '22, § 312; Civ. P. '12, § 118; Civ. P. '02, § 93; 1870 (14) 
§ 96. 

See § 903. 

Statute in force when cause of action 
accrues and not when commenced gov- 
erns limitation. — An amendment to the 
statute of limitations reducing the 
period from 20 to 10 years must be read 
in connection with this section, and if 
the right of action had already accrued 
when the amendment was adopted the 
statute in force at that time is applic- 
able. Rehkopf v. Kuhland, 30 S. C. 234, 
9 S. E. 99. See also, Young v. McNeill, 78 
S. C. 143, 59 S. E. 986; Cheatham v. 
Evans, 160 Fed. 802; Heyward v. Farm- 
ers' Min. Co., 42 S. C. 138, 19 S. E. 963, 
20 S. E. 64, 46 Am. St. Rep. 702, 28 L. R. 
A. 42; Lyles v. Roach, 30 S. C. 291, 9 
S. E. 334. 



There are only three exceptions to the 
operation of the statute of limitation. — 

(1) Where the action was already com- 
menced. (2) Where the right of action 
had already accrued. (3) Where a differ- 
ent limitation is prescribed by statute. 
See Glover v. Floyd, 76 S. C. 292, 57 S. E. 
25; Stoddard v. Owings, 42 S. C. 88, 20 
S. E. 25. 

See generally, Colvin v. Phillips, 25 
S. C. 228; State v. Pinckney, 22 S. C. 484; 
Nichols v. Briggs, 18 S. C. 473; Bolt v. 
Dawkins, 16 S. C. 198, 210; Bratton v. 
Guy, 12 S. C. 42; Hayes v. Clinkscoles, 
9 S. C. 441, 450; Shand v. Gage, 9 S. C. 
187, 188; as to general discussion of term 
"right of action," see Stoddard v. 
Owings, 42 S. C. 88, 20 S. E. 25. 



Page 197 



Civil Actions 



§ 356 



§ 356. Time for commencing actions, etc. — Civil actions can only be 
commenced within the periods prescribed in this title, after the cause of 
action shall have accrued, except where, in special cases, a different 
limitation is prescribed by statute, and in the cases mentioned in section 
355-1. But the objection that the action was not commenced within the 
time limited can only be taken by answer. 

1932 Code, § 356; Civ. P. '22, § 313; Civ. P. '12, § 119; Civ. P. '02, § 94; 1870 (14) 
§ 97. 



As to limitations of specific actions, 
see §§ 386 et seq. and the notes thereto. 

Editor's note. — Most of the cases 
wherein this section has been cited deal 
primarily with one or more of §§ 386 et 
seq., embraced in ch. 3 of this Title, pro- 
viding for the limitations of particular 
actions. In most instances the Editor has 
deemed it more expedient to place the 
treatment of such decided cases under 
those last mentioned sections. The prac- 
titioner is therefore referred to those 
sections and the notes there found. 

Answer is exclusive mode of raising 
question of limitation. — This section 
prescribes the exclusive method of ob- 
jecting that the action was not com- 
menced within the time limited. Ful- 
more v. Fulmore, 115 S. C. 213, 105 S. E. 
285. See, also, Sutton v. Clark, 59 S. C. 
440, 38 S. E. 150, l5o, 82 Am. St. Rep. 
848; Coney v. Timmons, 16 S. C. 378; 
Cureton v. Westfield, 22 S. C. 583, Kar- 
res v. Pappas, 194 S. C. 512, 10 S. E. (2d) 
15. But the reasons actuating the defend- 
ant to plead such limitation should not 
be stated in answer, and if contained 
therein, should be stricken out as ir- 
relevant. Nichols v. Briggs, 18 S. C. 473. 

Where there is failure to object by an- 
swer as herein prescribed, the defendant 
is precluded from raising that objection 
at trial. Jones v. Massey, 9 S. C. 376. 
But it seems that such failure to object 
by answer does not preclude the defend- 
ant from setting up other defenses. 
Cohrs v. Fraser, 5 S. C. 351, 355. 

And a demurrer is unavailable. — Un- 
der this section a demurrer is insuffi- 
cient to raise the question of limitation. 
Guerard v. Jenkins, 80 S. C. 223, 61 S. E. 
258; Fulmore v. Fulmore, 115 S. C. 213, 
105; 105 S. E. 285, Town of Cheraw v. 
Turnage, 184 S. C. 76, 191 S. E. 831. 

But it applies to plaintiff only where 
defendant files strict counterclaim. — 
The provision in this section that "the 
objection that the action was not com- 
menced within the time limited can only 
be taken by answer," applies to a plain- 
tiff only when called upon to answer or 
reply to a strict counterclaim or set-off 
asserted as a cross action against the 
plaintiff. It does not apply to the case 
where the defendant has no cross claim 
against the plaintiff, but files a plea 
which is in the nature of a counterclaim 



and which is tested by the rules gov- 
erning counterclaims. Bank of Columbia 
v. Gadsden, 56 S. C. 313, 33 S. E. 575, 
576. 

Burden is on him who raises limita- 
tion. — Under this section, where the sale 
of a decedent's land, sold to pay debts, 
is set aside for want of proper notice, 
and the purchaser presents a note of de- 
cedent which the heirs claim is barred 
by limitations, the burden of proving 
that fact is on the heirs. Moore v. Smith, 
29 S .C. 254, 7 S. E. 485, and the authori- 
ties there cited. 

Time of accrual of action is always 
primary inquiry. — When the question 
arises as to whether an action is barred 
by the statute of limitations, then in 
view of this section, the primary and 
practical inquiry is, when did the cause 
of action accrued? McCrady v. Jones, 44 
S. C. 406, 22 S. E. 414, 415. 

The answer to this inquiry necessarily 
depends upon the facts and circum- 
stances of each particular case. The 
practitioner is referred to the cases 
treated in the notes to §§ 386 et seq. — 
Ed. Note. 

The cause of action in favor of an in- 
dorser against a prior accommodation 
indorser, for money paid in satisfaction 
of a note after default, accrues when 
the payment is made, and not at the 
time his liability attaches. McCrady v. 
Jones, 44 S. C. 406, 22 S. E. 414. 

Statute of limitations not applicable to 
action for specific performance. Poston 
v. Ingraham, 76 S. C. 167, 56 S. E. 780; 
Miller v. Saxton, 75 S. C. 237, 55 S. E. 
310. 

The statute cannot avail unless so 
pleaded. Jones v. Boykin, 70 S. C. 309, 
49 S. E. 877; Foggeth v. Gaffney, 33 S. C. 
303, 12 S. E. 260. 

Adverse possession may be shown un- 
der general denial. Lloyd v. Rawl, 63 
S. C. 219, 41 S. E. 312. 

Presumption after lapse of twenty 
years. Young v. McNeill, 78 S. C. 143, 
59 S. E. 986. 

Quoted in Jennings v. Peay, 51 S. C. 
327, 28 S. E. 949, 950. 

Cited in Jackson v. Plyler, 38 S. C. 496, 
17 S. E. 255, 257, 37 Am. St. Rep. 782; 
Lyles v. Lyles, 71 S. C. 391, 51 S. E. 113, 
116; Park v. Brooks, 38 S. C. 300, 17 S. 
E. 22, 24. 



§ 356 



Code of Civil Procedure 



Page 198 



See generally, as to laches, Shute v. 
Shute, 82 S. C. 264, 64 S. E. 145; Jones 
v. Haile Gold Min. Co., 79 S. C. 47, 50, 
60 S. E. 35; Miller v. Saxton, 75 S. C. 



237, 55 S. E. 310; Brock v. Kirkpatrick, 
72 S. C. 491, 52 S. E. 592; Robertson v. 
Blair, 56 S. C. 96, 34 S. E. 11, 76 Am. 
St. Rep. 543. 



§ 357. When action deemed commenced. — An action is commenced as to 
each defendant when the summons is served on him, or on a co-defendant, 
who is a joint contractor, or otherwise united in interest with him. An 
attempt to commence an action is deemed equivalent to the commence- 
ment thereof, within the meaning of this title, when the summons is de- 
livered with the intent that it shall be actually served, to the sheriff or 
other officer of the county in which the defendant or one of them usually 
or last resided; or, if a corporation be defendant, to the sheriff or other 
officer of the county in which such corporation was established by law, 
or where its general business was transacted, or where it kept an office 
for the transaction of business. 

1932 Code, § 357; Civ. P. '22, § 340; Civ. P. '12, § 146; Civ. P. '02, § 120; 1870 (14) 
§ 122. 



Cross reference. — As to time when ju- 
risdiction of action is acquired, see § 
441 and the note thereto. As to manner 
of commencing civil actions, see § 427 
and the note thereto. As to requisites of 
summons, see § 428 and the note thereto. 
As to definition of term "action," see § 
2, and the note thereto. As to manner of 
service of summons, see §§ 433 et seq., 
and the notes there placed. 

Action commenced when summons is 
issued in good faith. — Under this section 
an action is commenced on the day of 
issuing the summons, where the same 
issued in good faith, and was afterwards 
regularly returned as served on all the 
defendants, though one of the defend- 
ants was not actually served. Montague 
v. Stelts, 37 S. C. 200, 15 S. E. 968, 34 
Am. St. Rep. 736. See, also, State v. Co- 
hen, 13 S. C. 198, 201. 

Service on one legatee commencement 
of action as to other legatees. Beacham 
v. Ross, 187 S. C. 399, 197 S. E. 369. 

And service is evidenced by sheriff's 
certificate. — The only evidence of serv- 
ice of the summons is by certificate of 
the sheriff, if served by him. State v. 
Cohen, 13 S. C. 198, 201. 

Or by affidavit of person executing 
summons. — If the summons is served by 
a person other than the sheriff, the evi- 
dence of service may be by affidavit of 
such person, or the written admission of 
the defendant. State v. Cohen, 13 S. C. 
198, 201. 

Compliance gives court jurisdiction of 
defendant's person. — This section pre- 
scribes a method (service of summons) 
whereby the court may acquire jurisdic- 
tion of defendant's person. Stephens v. 
Ringling, 102 S. C. 333, 86 S. E. 683. 

As to voluntary appearance by defend- 
ant, and the effect thereof, see § 441 and 
the note thereto. 

Lodging of summons for service has 



limited application. — It has been said 
that it is doubtful whether the portion of 
this section pertaining to the lodging of 
the summons for service being equiva- 
lent to a commencement of the action 
applies except in cases involving the 
statute of limitations. Jordan v. Wilson, 
69 S. C. 256, 48 S. E. 224. 

And does not constitute actual com- 
mencement of action. — The delivery to 
or a lodging of the summons with the 
sheriff is merely deemed equivalent to 
the commencement of the action, and is 
not actually a commencement of the ac- 
tion. Norris v. Hartford Fire Ins. Co., 
55 S. C. 450, 33 S. E. 566, 567, 74 Am. 
St. Rep. 765. 

Where parties to a contract made in 
this state use the words "commence- 
ment of an action," such words so far as 
knowledge or notice of such action is 
concerned, are deemed to mean com- 
mencement by service upon the defend- 
ant. Norris v. Hartford Fire Ins. Co., 55 
S. C. 450, 33 S. E. 566, 74 Am. St. Rep. 
765, involving an insurance policy which 
provided that it should be void if, with 
the knowledge of the insured, foreclos- 
ure proceedings should be commenced 
against the property of insured. 

Injunction may be granted before 
summons is served or lodged for serv- 
ice. — This section does not prohibit a 
circuit judge from granting a temporary 
injunction without notice, and before 
summons is served or lodged for service, 
to be served with the summons or other 
papers. Jordan v. Wilson, 69 S. C. 256, 
18 S. E. 224. 

The provisions of this section have 
been construed from a practical and 
common sense standpoint, in cases in- 
volving the granting of injunctions. Sec- 
tion 567 provides that an injunction may 
be granted "at the time of commencing 
the action." A strict construction of the 



Page 199 



Civil Actions 



§ 358 



instant section would preclude the 
granting of a temporary injunction until 
the summons is actually served or at 
least lodged for serivce. But it is not 
reasonable to suppose that it is the legis- 
lative intent that the preliminary in- 
junction should be signed simultaneous- 
ly with the service of summons or a 
lodging thereof for service. On the con- 
trary, the pertinent provisions of the 
two statutes, above cited, would seem to 
indicate that such injunction might be 
granted on presentation to a judge, of 
the summons and a proper complaint or 
proofs, a reasonable time before service, 
with a view that such order may be 
served along with the summons, as was 
held in the Jordan case, treated above. 
If this were not true then the evil which 



the injunction is designed to prevent 
might be aggravated. This feature might 
possibly be avoided by lodging the sum- 
mons for service and then immediately 
make application for injunction, a prac- 
tice which has been adopted by some 
lawyers. But the Supreme Court of this 
state (Jordan v. Wilson, supra) has said 
that it is doubtful if this portion of the 
instant section applies except in cases 
where the statute of limitations is in- 
volved. — Ed. Note. 

Cited in Ex parte Ware Furniture Co., 
49 S. C. 20, 27 S. E. 9, 11; Columbia 
Water Power Co. v. Columbia Land & 
Inv. Co., 47 S. C. 117, 25 S. E. 48; Cure- 
ton v. Dargan, 12 S. C. 122. 

See generally, Morgan v. Morgan, 45 
S. C. 323, 23 S. E. 64. 



§ 358. Exemption — defendant out of State. — If, when the cause of ac- 
tion shall accrue against any person, he shall be out of the State, such 
action may be commenced within the terms herein respectively limited 
after the return of such person into this State; and, if, after such cause of ac- 
tion shall have accrued, such person shall depart from and reside out of 
this State, or remain continuously absent therefrom for the space of one 
year or more, the time of his absence shall not be deemed or taken as any 
part of the time limited for the commencement of such action. 

1932 Code, § 358; Civ. P. '22, § 341; Civ. P. '12, § 147; Civ. P. '02, § 121; 1870 (14) 
§ 123. 



Residents temporarily without and 
non-residents within State embraced in 
section. — This section applies not only to 
a resident of the state who has gone 
abroad temporarily, and then returns, 
but also to one who has never been a 
resident and who comes for the first 
time within its limits. Burrows v. 
French, 34 S. C. 165, 13 S. E. 355, 27 
Am. St. Rep. 811, basing the ruling upon 
the construction of the word "return." 
Id. 

But the section applies only to the 
absentee. — The provisions of this section 
relate only to the absentee, and have no 
reference whatever to any other person 
who may be liable to suit, even upon 
the same cause of action, accruing at the 
same time. Arthur v. Screven, 39 S. C. 
77, 17 S. E. 640, 643. 

Otherwise, if two persons should sign 
a joint and several promissory note, and 
one of them should leave the state, and 
never return, the other could never 
plead the statute of limitations to an 
action brought for the breach of the 
contract evidenced by the note. This, 
certainly, could not have been the in- 
tention of the legislature, and in our 
judgment the language used in this sec- 
tion does not require, but on the con- 
trary forbids, such a construction. 
Arthur v. Screven, 39 S. C. 77, 17 S. E. 
640, 643. 



In an action to foreclose a mortgage, 
a defendant who claimed title through 
an execution sale could plead the bar of 
the statute of limitations, though the 
mortgagor was unable to do so by reason 
of absence from the state. Arthur v. 
Screven, 39 S. C. 77, 17 S. E. 640. 

"Against" whom action has accrued or 
shall accrue. — Under this section a party 
who removed from the state after a 
cause of action had accrued in his favor 
was not entitled to deduct the time of 
his absence from the state from the time 
limited for the commencement of the 
action, since the statute affords no pro- 
tection to a person in whose favor a 
cause of action has accrued. Maccaw v. 
Crawley, 59 S. C. 342, 37 S. E. 934. 

The reason underlying this section is 
very obvious: Where a person against 
whom it is desired to bring an action 
leaves the state, and places himself be- 
yond the reach of the process of the 
courts of this state, it is nothing but 
right to deprive him of the right to 
claim the benefit of the time during 
which he is out of the state, when he 
could not be reached by the process of 
the court, and could not be sued. Mac- 
caw v. Crawley, 59 S. C. 342, 37 S. E. 
934, 937. 

And the question of required absence 
is for the jury. — The question whether 
or not a person is absent from the state, 



§ 358 



Code of Civil Procedure 



Page 200 



within the meaning of this section is a 
question of fact for the jury. Latimer v. 
Trowbridge, 52 S. C. 193, 29 S. E. 634, 
636, 68 Am. St. Rep. 893. 

Which if exists, bars plea of limita- 
tions. — If the jury finds that the defend- 
ant was absent from the state within the 
meaning of this section, the plaintiff is 
then protected from the defendant's 
plea of the statute of limitations. Lati- 
mer v. Trowbridge, 52 S. C. 193, 29 S. E. 
634, 637, 68 Am. St. Rep. 893. Such a 
finding would also protect the plaintiff 
from a plea of payment by lapse of time. 
Id. 

Section applies to revival of decree in 
former suit. — This section applies to one 
who was a party to a suit, and was ab- 
sent from the state over one year prior 
to a proceeding to revive the decree 
therein. Morgan v. Morgan, 45 S. C. 
323, 23 S. E. 64. 



Creditor is given full statutory period 
of limitation. — The provision in this sec- 
tion pertaining to the absence of a per- 
son after the accrual of the cause of ac- 
tion shows that the legislature intended 
that a creditor should have the full 
period fixed by the particular statute of 
limitation applicable to the case, while 
his debtor is within reach of the process 
of the court, to bring his action, except 
where his temporary absence was for a 
period less than one year. Burrows v. 
French, 34 S. C. 165, 13 S. E. 355, 356, 
27 Am. St. Rep. 811. See, also, Latimer 
v. Trowbridge, 52 S. C. 193, 29 S. E. 
634, 68 Am. St. Rep. 893. 

Applied as to absence from state sus- 
pending operation of statute of limita- 
tions, Ewbank v. Ewbank, 64 S. C. 434, 
42 S. E. 194; Cauthen v. Cauthen, 70 
S. C. 167, 49 S. E. 321. 



§ 359. Exemption as to persons under disability. — If a person entitled 
to bring an action mentioned in §§ 386 thru 396, except for a penalty or 
forfeiture, or against a sheriff or other officer for an escape, be, at the time 
the cause of action accrued, either: (1) within the age of twenty-one years; 
or (2) insane; or (3) imprisoned on a criminal or civil charge, or in execu- 
tion under the sentence of a criminal court for a less term than his 
natural life — the time of such disability is not a part of the time limited 
for the commencement of the action; except that the period within which 
the action must be brought cannot be extended more than five years by 
any such disability, except infancy; nor can it be so extended, in any case, 
longer than one year after the disability ceases: provided, that the omission 
of the words, "or insane," herein since the adoption of the Code of Laws 
of South Carolina, 1912, shall not prejudice the interest of any insane per- 
son. 

1932 Code, § 359; Civ. P. '22, § 342; Civ. P. '12, § 148; Civ. P. '02, § 122; 1870 (14) 
§ 124; 1918 (30). 



General consideration. — The section 
refers to other disabilities as well as to 
infancy, and contains certain provisions 
applicable to them, but not to infancy; 
and is admittedly confusing in its terms. 
Frady v. Ivester, 118 S. C. 195, 110 S. E. 
135, 142. (Dissenting opinion.) 

Exclusion of time of disability applies 
to all classes of disability. — The clause 
in this section reading, "the time of 
such disability is not a part of the time 
limited for the commencement of the 
action," applies to all the three classes of 
cases dealt with in this section. If the 
section had ended with the clause quot- 
ed above, the necessary result would be 
that, practically, the statute of limitation 
would not commence to run against a 
person laboring under either of these 
three classes of disability until such dis- 
ability was removed. Fricks v. Lewis, 
26 S. C. 237, 1 S. E. 884, 887. 

But there is an exception to the gen- 



eral declaration mentioned in the fore- 
going paragraph, at least so far as two 
classes of disability are concerned. This 
exception is in the words which declare 
that the time within which the action 
must be brought cannot be extended 
more than five years by disability aris- 
ing from insanity or imprisonment. 
Fricks v. Lewis, 26 S. C. 237, 1 S. E. 
884, 888. 

And this is true as to prohibition 
against extension beyond one year after 
disability ceases. — The clause near the 
end of the section, providing that in no 
case shall the time be extended for a 
larger period than one year after the 
disability ceases, applies to all the three 
classes of disability referred to in this 
section. Fricks v. Lewis, 26 S. C. 237, 1 
S. E. 884, 888. 

Operation of statute of limitations 
against infant. — In Fricks v. Lewis, 26 
S. C. 237, 1 S. E. 884, the contention was 



Page 201 



Civil Actions 



§ 360 



made that in cases of infancy, the statute 
of limitations does not commence to run 
until after the infant attains his ma- 
jority. But the court held that the sec- 
tion could not be so construed. 

In the dissenting opinion in Frady v. 
Ivester, 118 S. C. 195, 110 S. E. 135, 142, 
it is said that the result of the decision 
in the case of Fricks v. Lewis, 26 S. C. 
237, 1 S. E. 884, is that, if an infant at- 
tained majority within the period of 
limitation, and more than one year has 
elapsed between the date of majority 
and the termination of the period, the 
infant is entitled to no additional time, 
and the action is barred at the expira- 
tion of the original period. Accord, Mon- 
teith v. Harby, 193 S. C. 349, 8 S. E. 
(2d) 629. 

Under this section a beneficiary of a 
trust-estate, who at the age of 13 joined 
in the execution of a discharge of the 
trustee, cannot, five years after attain- 
ing her majority, maintain an action 
against the estate of the trustee for an 
alleged balance due from the trust-es- 
tate, the limitation for such actions be- 



ing six years. Anderson v. Simms, 29 
S. C. 347, 7 S. E. 289, 13 Am. St. Rep. 
711. 

"Action" as used herein as to com- 
mencement of action by infant within 
one year after attaining his majority, is 
not limited merely to proceeding com- 
menced by service of summons. Lyerly 
v. Yeadon, 183 S. C. 256, 190 S. E. 737. 

Hence proceeding in partition suit by 
infant defendants on attaining their ma- 
jority to set aside sale decreed therein 
which was not commenced within six 
years after cause of action accrued or 
within one year after disability of 
youngest defendant was removed, was 
barred by limitations. Ibid. 

Infant mortgagor. — Where mortgage 
was executed during minority of mort- 
gagor, who with full knowledge of here 
rights acquiesced therein for 11 years 
after attaining majority, in action to 
foreclose mortgage defense of infancy 
is barred by the statute of limitations 
and by laches. Jones v. Godwin, 187 S. 
C. 510, 198 S. E. 36. 



§ 360. Death of person entitled before limitation expires. — If a per- 
son entitled to bring an action die before the expiration of the time limited 
for the commencement thereof, and the cause of action survive, an action 
may be commenced by his representatives, after the expiration of that 
time and within one year from his death. If a person against whom an 
action may be brought die before the expiration of the time limited for 
the commencement thereof, and the cause of action survive, an action 
may be commenced against his executors or administrators after the ex- 
piration of that time, and within one year after the issuing of letters 
testamentary or of administration. 

1932 Code, § 360; Civ. P. '22, § 343; Civ. P. '12, § 149; Civ. P. '02, § 123; 1870 (14) § 
125. 



Statutory prohibition as to suits against 
executors. — Where the statutory period 
has not expired before administration, 
under the statute protecting an adminis- 
trator or executor from suit for nine 
months (now 12 months), that time must 
be added to the statutory period. Cleve- 
land v. Mills, 9 S. C. 430, 435; Hayes v. 
Clinkscales, 9 S. C. 441, 450; Moore v. 
Smith, 29 S. C. 254, 7 S. E. 485. 

As to statutory prohibition against 
commencement of suits against executor 
or administrator until twelve months 
after testator's or intestate's death, see 
§ 418, and the note thereto. 

Plea of limitation available if suit not 
commenced within period specified. — It 
must appear that the action was not 
commenced within one year after letters 
testamentary or of administration were 
granted, otherwise the plea of statute of 
limitations will not avail. Foggeth v. 
Gaffney, 33 S. C. 303, 12 S. E. 260. 



Statute must have begun to run dur- 
ing lifetime of decedent. — This section 
only applies to cases where the statute 
commenced to run in the lifetime of de- 
cedent, and the statutory period expired 
before administraiton. Strain v. Babb, 
30 S. C. 342, 9 S. E. 271, 14 Am. St. Rep. 
905. See also, Gaston v. Gaston, 80 S. C. 
157, 61 S. E. 393; Foggeth v. Gaffney, 
33 S. C. 303, 312, 12 S. E. 260. 

Illustration where death occurs before 
statute runs. — Under this section and § 
418 an action on a promissory note not 
under seal is not barred by limitations, 
where before the six years has run the 
maker dies, and after the six years has 
run, but within one year after the grant- 
ing of letters of administration, the ac- 
tion is begun. Gaston v. Gaston, 80 S. C. 
157, 61 S. E. 393, 394. 

See generally. Huff v. Watkins, 20 S. 
C. 477; Allen v. Union Oil Co., 59 S. C. 
571, 38 S. E. 274. 



§ 361 Code of Civil Procedure Page 202 

§ 361. Suits by aliens.— When a person shall be an alien subject, or citizen 
of a country at war with the United States, the time of the continuance 
of the war shall not be a part of the period limited for the commence- 
ment of the action. 

1932 Code, § 361; Civ. P. '22, § 344; Civ. P. '12, § 150; Civ. P. '02, § 124; 1870 (14) 
§ 126. 

§ 362. Where judgment reversed. — If an action shall be commenced with- 
in the time prescribed therefor, and a judgment therein be reversed on ap- 
peal, the plaintiff, or, if he die and the cause of action survive, his heirs or 
representatives may commence a new action within one year after the 
reversal. 

1932 Code, § 362; Civ. P. '22, § 345; Civ. P. '12, § 151; Civ. P. '02, § 125; 1870 (14) 
§ 127. 

§ 363. Stay of action by injunction, etc. — When the commencement of 
an action shall be stayed by injunction or statutory prohibition, the time 
of the continuance of the injunction or prohibition shall not be part of the 
time limited for the commencement of the action. 

1932 Code, § 363; Civ. P. '22, § 346; Civ. P. '12, § 152; Civ. P. '02, § 126; 1870 (14) 
§ 128. 

§ 364. Disability must exist when right accrued. — No person shall avail 
himself of a disability, unless it existed when his right of action accrued. 

1932 Code, § 364; Civ. P. '22, § 347; Civ. P. '12, § 153; Civ. P. '02, § 127; 1870 (14) 
§ 129. 

See generally, Maccaw v. Crawley, 59 Brev. 286; Adamson v. Smith, 2 Mills 
S. C. 342, 37 S. E. 934; Shubrick v. Const. Reports 269; Faysoux v. Prather, 
Adams, 20 S. C. 49; Fewell v. Collins, 3 1 N. & McC. 296. 

§ 365. Two or more disabilities. — Where two or more disabilities shall 
co-exist at the time the right of action accrues, the limitation shall not at- 
tach until they all be removed. 

1932 Code, § 365; Civ. P. '22, § 348; Civ. P. '12, § 154; Civ. P. '02, § 128; 1870 (14) 
§ 130. 

§ 366. When title not to apply. — This title shall not affect actions to en- 
force the payment of bills, notes, or other evidences of debt, issued by 
moneyed corporations, or issued or put in circulation as money. 

1932 Code, § 366; Civ. P. '22, § 349; Civ. P. '12, § 155; Civ. P. '02, § 129; 1870 (14) 
§ 131. 

Word "moneyed" is used in generic stamped and issued by the state as a 

senS e. — The word "moneyed" used in medium of exchange; in its wider sense, 

this and the section immediately follow- the word means "wealth." Grice v. An- 

ing, is not technical, and it is generic derson, 109 S. C. 388, 96 S. E. 222, 224, 

rather than specific. Grice v. Anderson, citing Webster's Dictionary. 

109 S C 388 96 S E 222, 224. Moneyed corporation illustrated.— A 

And carries with it the meaning of corporation organized with intention to 

wealth.-Neither the Constitution nor ^^^Grice v AndersZ"!^! S^C 

the statutes, so far as can be ascertained, Sgo qr s E 222 224 

have defined "moneyed corporation," or ^ a corporation makes it a business to 

have used it, save in this section, and ]end mone y ; to borrow money, to deal in 

the section immediately following. Re- negotiable paper, bonds, stocks and 

sort must be had therefore to the Eng- other securties, it is a moneyed corpora- 

lish dictionary to ascertain the meaning tion. Grice v. Anderson, 109 S. C. 388, 96 

of the word "moneyed." "Money," in its S. E. 222, 224, citing Piatt v. Wilmot, 193 

restricted sense, means a piece of metal U. S. 602, 24 S. Ct. 542, 48 L. Ed. 809. 



Page 203 



Civil Actions 



368 



§ 367. Exemptions, — This title shall not affect action against directors 
or stockholders of a moneyed corporation, or banking associations, to re- 
cover a penalty or forfeiture imposed, or to enforce a liability created by 
law; but such actions must be brought within six years after the dis- 
covery by the aggrieved party of the facts upon which the penalty or for- 
feiture attached, or the liability was created, unless otherwise provided 
in the law under which such corporation is organized. 

1932 Code, § 367; Civ. P. '22, § 350; Civ. P. '12, § 156; Civ. P. '02, § 130; 1870 (14) 
§ 132. 

against stockholders of all corporations 
wherein a liability of stockholders was 
created by law, until the discovery by 
the creditor of the facts upon which the 
liability was created. Grice v. Anderson, 
109 S. C. 388, 96 S. E. 222, 224. 

The qualifying words were not so 
much "moneyed corporations," but first, 
corporations where the stockholder was 
made liable by law to creditors of the 
corporation, and, second, such corpora- 
tions of a moneyed character as dis- 
tinguished from those corporations not 
organized for profit. Grice v. Anderson, 
109 S. C. 388, 96 S. E. 222, 224. 

"Aggrieved party" defined. — The "ag- 
grieved party" in suit by receiver of 
stockholders' liability of closed state 
bank is not the receiver but the deposi- 
tors; hence complaint alleging that bank 
was closed more than six years previous- 
ly was not demurrable as showing that 
depositors discovered the facts at time of 
closure. Nettles v. Walcott, 25 Fed. Supp- 
35. 



See the note to the next foregoing sec- 
tion. 

Section construed with Art. 9, § 18. of 
Constitution. — This section manifestly 
must be construed with art. 9, § 18, of 
the State Constitution, since they both 
relate to the same subject matter. Grice 
v. Anderson, 109 S. C. 388, 96 S. E. 222, 
224. 

Section governs limitation of actions 
against stockholders. — This section 
seems to govern the period of limitation 
within which the liability of stockhold- 
ers of an insolvent bank may be en- 
forced by creditors. Parker v. Carolina 
Sav. Bank, 53 S. C. 583, 31 S. E. 673, 69 
Am. St. Rep. 888, basing its decision 
upon the fact that the two year limita- 
tion provided for in the general corpora- 
tion act is not applicable to bank. See § 
7677. 

It is apparent that this section was 
enacted primarily to preserve to cred- 
itors of corporations their actions 



§ 368. New promises must be in writing. — No acknowledgment or 
promise shall be sufficient evidence of a new or continuing contract, where- 
by to take the case out of the operation of this title, unless the same be 
contained in some writing signed by the party to be charged thereby; but 
payment of any part of principal or interest is equivalent to a promise in 
writing. 

1932 Code, § 368; Civ. P. '22, § 351; Civ. P. '12, § 157; Civ. P. '02, § 131; 1870 (14) 
§ 133. 



Prior law required no writing. — Prior 
to the adoption of this section it was 
well settled that the new promise or ac- 
knowledgment need not be in writing. 
Park v. Brooks, 38 S. C. 300, 17 S. E. 22, 
24. 

Object of the section. — It is very clear 
that it was the intention of the legisla- 
ture, in adopting this section, to declare 
in absolute terms that no verbal prom- 
ise or acknowledgment shall revive or 
continue a contract otherwise subject to 
the statute of limitations. Park v. 
Brooks, 38 S. C. 300, 17 S. E. 22; Hill v. 
Perrin, 21 S. C. 356, 358. 

The acknowledgment must recognize 
an existing debt. — In Manchester v. 
Braedner, 107 N. Y. 346, 14 N. E. 405, 1 



Am. St. Rep. 829, 831, cited with approv- 
al in Suber v. Richards, 61 S. C. 393, 
39 S. E. 540, 542, the court said: "It 
seems to be the general doctrine that 
the writing, in order to constitute an 
acknowledgment, must recognize an 
existing debt." 

The rule laid down in Lockhart v. 
Eaves, Dud. 321, and approved in Rob- 
bins v. Farley, 2 Strob. 348, 352, is that 
acknowledgment of promises to obviate 
the statute of limitations are not suffi- 
cient unless they specify or plainly refer 
to some particular cause of action. Su- 
ber v. Richards, 61 S. C. 393, 39 S. E. 
540, 542. 

The identity of which is question for 
jury. — The identity of the debt, which a 



§ 368 



Code of Civil Procedure 



Page 204 



debtor promises in writing to pay, with 
the debt sued for, is a matter properly 
left to the jury. Hill v. Hill, 51 S. C. 
134, 28 S. E. 309. 

And writing must manifest debtor's 
intention to pay. — The writing relied 
upon as an acknowledgment must con- 
tain nothing that is inconsistent with an 
intention on the part of the debtor to 
pay the debt. Manchester v. Braedner, 
107 N. Y. 346, 14 N. E. 405, 1 Am. St. 
Rep. 829, 831, approved in Suber v. Rich- 
ards, 61 S. C. 393, 39 S. E. 540, 542. 

And it must be unequivocal. — A state- 
ment in a letter by the maker of a note 
that "I hope we can agree on a settle- 
ment of the note soon," does not consti- 
tute an acknowledgment or new prom- 
ise, within the provisions of the statute 
of limitations. Millwee v. Jay, 47 S. C. 
430, 25 S. E. 298. 

In Park v. Brooks, 38 S. C. 300, 17 S. 
E. 22, it is indicated that this require- 
ment applies only to a promise made 
after a discharge in bankruptcy, in 
■which case, in order to sustain an action, 
the new promise must be "distinct, posi- 
tive and unequivocal." But it is said 
that this is not the rule in relation to 
promises to take a case out of the opera- 
tion of the statute of limitations. 

But parol evidence is admissible to 
interpret instrument. — Oral evidence 
may be resorted to, as in other cases of 
written instruments, in aid of the inter- 
pretation. Consistent with this rule, it 
has been held that oral evidence is ad- 
missible to identify the debt and its 
amount, or to fix the date of the writing 
relied upon as an acknowledgment, 
when these circumstances are omitted. 
Suber v. Richards, 61 S. C. 393, 39 S. E. 
540, 542. 

Under this section a parol promise not 
to plead the statute of limitations can- 
not operate as a waiver, or as an agree- 
ment, nor can it serve as an estoppel. 
Hill v. Perrin, 21 S. C. 356. 

In an action by executors on a note 
barred by limitations on its face, evi- 
dence that a credit on the note was in 
the handwriting of the intestate was ad- 
missible as tending to show an under- 
standing that payment should be cred- 
ited on the note, thus tolling the statute 
of limitations. Hopper v. Hopper, 61 S. 
C. 124, 39 S. E. 366. 

Evidential value of part payments of 
principal or interest applies only for 
purposes of limitations. — The provision 
in this section as to payment of part of 
principal or interest being equivalent to 
a promise in writing, is to be construed 
as applicable for the purposes of limita- 
tion only and does not render such a 
payment a written promise under the 
statute of frauds. Millwee v. Jay, 47 S. 
C. 430, 25 S. E. 298. 



And has no application to doctrine of 
payment from lapse of time. — This sec- 
tion apparently does not apply, except 
by analogy, to the doctrine of payment 
from the lapse of time. See Latimer v. 
Trowbridge, 52 S. C. 193, 29 S. E. 634, 
636, 68 Am. St. Rep. 893. 

The next succeeding section, how- 
ever, expressly gives the right to plead 
the presumption of payment from lapse 
of time. — Ed. Note. 

Part payments serve as consideration 
for the promise. — If such payments are 
made on the debt before the statutory 
period has expired, it is called a "legal" 
consideration of such promise to pay; 
but, if made after the statutory period 
has expired, such payment is called a 
"moral''' consideration for the promise 
to pay. Jacobs v. Gilreath, 41 S. C. 143, 
19 S .E. 308, 310. 

And may be made after expiration of 
limitation period. — The part payment of 
either principal or interest, to have the 
effect mentioned in this section, need 
not have been made before the original 
statutory period had expired. Park v. 
Brooks, 38 S. C. 300, 17 S. E. 22, 24. 

But they must be affirmatively 
pleaded. — The two cases of Fleming v. 
Fleming, 33 S. C. 505, 508, 12 S. E. 257, 
26 Am. St. Rep. 694, and Park v. Brooks, 
38 S. C. 300, 17 S. E. 22, have settled the 
rule in this state to be that, where pay- 
ments of principal or interest on a debt 
are relied upon as promises to pay, to 
avoid the bar of the statutes the same 
must be complained upon as such. Ja- 
cobs v. Gilreath, 41 S. C. 143, 19 S. E. 
308, 309. 

Partial payment on note tolls statute. 
— Under this section proof of a partial 
payment on a note is sufficient to toll 
the statute of limitation. Park v. Brooks, 

38 S. C. 300, 17 S. E. 22. But payment 
after death of debtor does not arrest the 
statute. Divine v. Miller, 70 S. C. 225, 49 
S. E. 479, 106 Am. St. Rep. 743. 

Part payment by payee to assignee 
renders payee liable. — Under this sec- 
tion a payment by the payee of a note, 
to an assignee thereof, with knowledge 
of the assignment, renders the payee 
liable to pay the amount due on the 
note to such assignee as on a new prom- 
ise. McBrayer v. Mills, 62 S. C. 36, 39 
S. E. 788. 

Application of payments made with- 
out specific instructions. — Where a cred- 
itor holds several claims against a debt- 
or who makes payments generally with- 
out any instructions as to application, 
the creditor may apply the payment to 
a debt already barred, thus tolling the 
statute. Hopper v. Hopper, 61 S. C. 124, 

39 S. E. 366. 

Illustrations of writings held to be an 
acknowledgment. — The cases illustrating 



Page 205 



Civil Actions 



§ 370 



what instruments may and may not be 
considered acknowledgments so as to 
cause this section to operate are legion. 
It would be impossible to set out in a 
work of this kind every form of writ- 
ing which has received judicial con- 
struction on the question of sufficient 
compliance with all of the requisites 
which go to make up an acknowledg- 
ment. The cases given below will serve 
as illustration of the general rules which 
we have discussed. — Ed. Note. 

Letters of debtor admitting maturity 
of note. — Letters by a debtor, acknowl- 
edging that a note is due, but not ex- 
pressing any intent not to pay it, are a 
sufficient written acknowledgment of a 
continuing contract, within the mean- 
ing of this section, to remove the bar of 
limitations, though they express an ex- 
pectation to pay from the proceeds of 
sale of certain property, but do not con- 
tain an unconditional promise to pay. 
Hill v. Hill, 51 S. C. 134, 28 S. E. 309. 

Letters may constitute a written ac- 
knowledgment of a debt due an estate, 
though addressed to the administrators 
as individuals, or though addressed to 
only one of two administrators. Hill v. 
Hill, 51 S. C. 134, 28 S. E. 309. 

Indorsements made on note. — Indorse- 
ments of interest payments, made on a 
note given for a firm debt by one of the 
partners after the note had been filed 
in dissolution proceedings as a claim 
against the firm, transferring to the note 
entries of interest payments made on 
the firm ledger, are sufficient to toll 
the statute of limitation. Bulcken v. 
Rhode, 81 S. C. 503, 62 S. E. 786, 787. 



Under this section an indorsement on 
a sealed note, of a payment, with a 
statement signed by the payor that he 
made the payment as heir of the maker 
of the note, arrests the running of the 
statute. Cook v. Jennings, 40 S. C. 204, 
18 S. E. 640. See, also, the authorities 
there cited. And see Walker v. Cassels, 
70 S. C. 271, 49 S. E. 862. 

A promise by an administrator to pay 
decedent's debt is said to bind only his 
personal estate. Divine v. Miller, 70 S. 
C. 225, 49 S. E. 479, 106 Am. St. Rep. 743. 

Ledger entries by bookkeeper. — The 
entries of the bookkeeper upon a ledger, 
by the direction of the copartnership, 
cannot be construed as a writing signed 
by the party to be charged thereby. 
Bulcken v. Rhode, 81 S. C. 503, 62 S. E. 
786, 787. This is for the reason that there 
is no actual signing by the party to be 
charged, and no attempt or intention to 
deliver such writing to the creditor. Id. 

A written acknowledgment of a firm 
debt by two of the partners, made after 
action brought to dissolve the firm, and 
presentation of the claim to a master, 
and objection made that it was barred 
by limitations, was insufficient to toll 
the statute, under this section. Bulcken 
v. Rhode, 81 S. C. 503, 62 S. E. 786. 

Cited, as to inapplicability of section 
as to time of commencing actions against 
stockholders on a liability created by 
law. Grice v. Anderson, 109 S. C. 388, 
96 S. E. 222, 224; Gregory v. Perry, 71 
S. C. 246, 50 S. E. 787. 

See generally, Eastes v. Wood, 21 S. 
C. 600; Black v. White, 13 S. C. 37; La- 
nier v. Tolleson, 20 S. C. 57. 



§ 369. Partners only liable for their own acts after dissolution of partner- 
ship. — No acknowledgment, payment or part payment or renewal of any 
debt or obligation of a firm, made after notice of the dissolution of the 
copartnership, shall have any force or effect to bind any member of the 
firm or continue his liability to pay said copartnership debt, other than 
the person by whom such acknowledgment, payment or part payment or 
renewal shall be made, or in any wise affect their right to plead the statute 
of limitations or the presumption of payment from lapse of time. 

1932 Code, § 369; Civ. P. '22, § 352; Civ. P. '12, § 158; Civ. P. '02, § 131a; 1900 (23) 
349. 



Part payments by one of several joint 
contractors do not bind the others and 
deprive them of the protection herein 
given. Smith v. Townsend, 9 Rich. 44; 
Smith v. Caldwell, 15 Rich. 365, 374; 



Shubrick v. Adams, 20 S. C. 49. 

Cited in Deer Island Lumber Co. v. 
Virginia-Carolina Chemical Co., Ill S. 
C. 299, 97 S. E. 833; Walters v. Kraft, 
23 S. C. 578. 



§ 370. Suits on causes saved from bar of statute by part payment, etc. 
— All actions upon causes of action which would be barred by the statute of 
limitations but for part payment or a written acknowledgment, shall be 
brought on the original cause of action, and the part payment or written 



§ 370 



Code of Civil Procedure 



Page 206 



acknowledgment shall be evidenced, 
limitations. 

1932 Code, § 370; Civ. P. '22, § 353; Civ. 
345. 

Section simplifies former procedure. — 

The object underlying this section was 
a change from the cumbersome practice 
of alleging the part payment or acknowl- 
edgment as a new promise, to the simp- 
ler form of an action upon the original 
instrument, leaving the fact of part pay- 
ment or acknowledgment as evidence 
to prevent the bar of the statute. Butts 
v. Georgetown Mut. Building & Loan 
Ass'n, 142 S. C. 353, 140 S. E. 700, 701. 
For prior law, see Fleming v. Fleming, 
33 S. C. 505, 12 S. E. 257, 26 Am. St. 
Rep. 694. See, also, Colvin v. Phillips, 25 
S. C. 228. 

Requirement of suing on original 
cause of action is mandatory. — Drafts on 
treasurer of benefit association made 
basis of suit after statute of limitations 
had run against original cause of ac- 
tion, if construed as written acknowl- 
edgment of the original indebtedness 
tolling the statute (the question was 



to prevent the bar of the statute of 
P. '12, § 159; Civ. P. '02, § 131b; 1900 (23) 



not decided), held insufficient to war- 
rant recovery, in view of this section, 
requiring suit to be brought on the orig- 
inal cause of action. Kline v. Independ- 
ent Order of Odd Fellows, 138 S. C. 221, 
136 S. E. 216. 

The evidential value of the fact of part 
payment or acknowledgment, provided 
for in this section, is not taken as evi- 
dence against one who has not produced 
it. Butts v. Georgetown Mut. Bldg., etc., 
Ass'n, 142 S. C. 353, 140 S. E. 700, 701, 
holding that payments before or after 
maturity of a note by the maker does 
not toll the statute as to indorsers. 

Allegation of a payment on a day cer- 
tain is an allegation of a new promise. 
— McBrayer v. Mills, 62 S. C. 36, 39 S. 
E. 788. 

Cited as not having retroactive opera- 
tion, Colvin v. Phillips, 25 S. C. 228. 



CHAPTER 12 
Actions for the Recovery of Real Property 



371. When State will not sue. 

372. Grantee from State. 

373. Limit for action by State or gran- 
tees. 

374 and 375. When seizing within ten 
years necessary. 



376. Action after entry. 

377. Possession. 

378 thru 382. Adverse possession. 

383. Descent cast. 

384. Persons under disability. 

385. No action after forty years. 



§ 371. When State will not sue. — The State will not sue any person for 
or in respect to any real property, or the issues or profits thereof, by reason 
of the right or title of the State to the same unless: 

(1) Such right or title shall have accrued within twenty years before 
any action or other proceeding for the same shall be commenced; or unless 

(2) The State, or those from whom it claims, shall have received the rents 

and profits of such real property, or of some part thereof, within the space 

of twenty years. 

1932 Code, § 371; Civ. P. '22, § 314; Civ. P. '12, § 120; Civ. P. '02, § 95; 1870 (14) { 
98; 1873 (15) 496. 



In general. — Prior to the adoption of 
this section in 1870 the doctrine of null- 
um tempus prevailed in this state, State 
v. Pacific Guano Co., 22 S. C. 50, the 
effect of the section on the doctrine re- 
mains to be construed. Glover v. Floyd, 
76 S. C. 292, 296, 57 S. E. 25; State v. 
Pinckney, 22 S. C. 484; State v. P. G. Co., 
22 S. C. 50. 



"Land" connotes the title thereto. — 

There is no such thing as "land," in con- 
templation of law, apart from the title 
to it. All the provisions of the code of 
procedure touching suits about land de- 
volve about the title to the land. Gibbs 
v. Hunter, 99 S. C. 410, 83 S. E. 606, 607. 
Presumption as to state ownership of 
land. — There is a presumption that the 



Page 207 Actions for the Recovery of Real Property § 374 

State at one time owned all lands. Trus- property and in such action the munici- 

tees v. Columbia, 108 S. C. 244, 93 S. E. pal corporation cannot defend on the 

934. 936. And in an action to recover ground that the plaintiff's action has 

lands, the state may rest on this pre- not accrued within the last 20 years, 

sumption until the defendant proves a Trustees v. Columbia, 108 S. C. 244, 93 

divestment of her title. Id. S. E. 934. 

City may not plead statute against Cited as not having retrospective oper- 

state seeking to recover its property. — ation, State v. Pinckney, 22 S. C. 484; 

Where a city holds and enjoys the use Heyward v. Farmers' Min. Co., 42 S. C. 

of real estate actually belonging to the 138, 19 S. E. 963, 20 S. E. 64, 46 Am. St. 

State, the State may sue to recover such Rep. 702, 28 L. R. A. 42. 

§ 372. When action cannot be brought by grantee from State. — No action 
shall be brought for or in respect to real property by any person claiming 
by virtue of letters patent or grants from the State, unless the same might 
have been commenced by the State as herein specified, in case such patent 
or grant had not been issued or made. 

1932 Code, § 372; Civ. P. '22, § 315; Civ. P. '12, § 121; Civ. P. '02, § 96; 1870 (14) 
§ 99. 

§ 373. When action by State or their grantees to be brought within ten 
years. — When letters patent or grants of real property shall have been 
issued or made by the State, and the same shall be declared void by the 
determination of a competent court, rendered upon an allegation of a fraud- 
ulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of 
a material fact, or wrongful detaining, or defective title, in such case an 
action for the recovery of the premises so conveyed may be brought either 
by the State, or by any subsequent patentee or grantee of the premises, 
his heirs or assigns, within ten years after such determination was made, 
but not after that period. 

1932 Code, § 373; Civ. P. '22, § 316; Civ. P. '12, § 122; Civ. P. '02, § 97; 1870 (14) 
§ 100; 1873 (15) 496. 

§ 374. Seizin within ten years — when necessary — plaintiff limited to two 
actions. — (1) No action for the recovery of real property, or for the re- 
covery of the possession thereof, shall be maintained, unless it appear 
that the plaintiff, his ancestor, predecessor, or grantor, was seized or pos- 
sessed of the premises in question within ten years before the commence- 
ment of such action: provided, no action to recover possession of real 
property shall be brought against a party in possession under claim of 
title through a deed or deeds in which a defective renunciation of in- 
heritance occurred, or in which no renunciation of inheritance was made 
where one should have been executed, where said right of action would 
not exist, except by reason of an ancestor's defective renunciation of in- 
heritance or failure to execute a renunciation of inheritance, unless said 
action is commenced prior to January 1, 1914. 

(2) The plaintiff in all actions for recovery of real property, or the re- 
covery of the possession thereof, is hereby limited to two actions for the 
same, and no more: provided, that the costs of the first action be first paid, 
and the second action be brought within two years from the rendition of 
the verdict or judgment in the first action, or from the granting of a non- 
suit or discontinuance therein. 

1932 Code, § 374; Civ. P. '22, § 317; Civ. P. '12, § 123; Civ. P. '02, § 98; 1879 (22) 76; 
1913 (27) 36. 



§ 374 



Code of Civil Procedure 



Page 208 



I. General considerations. 
II. Subdivision (1). 
III. Subdivision (2). 

A. Common law principles. 

B. The statutory requisites. 

1. In general. 

2. Conditions enumerated and 

necessity of compliance. 

a. Generally. 

b. Payment of costs. 

c. The two year limitation. 

3. Actions for recovery of real 

estate. 

a. General principles. 

b. Illustrations. 

I. GENERAL CONSIDERATIONS. 

History of section. — For a full discus- 
sion of the historical origin and growth 
of this section the practitioner is re- 
ferred to Columbia Water-Power Co. v. 
Columbia Land, etc., Co., 42 S. C. 488, 
20 S. E. 378; Carr v. Mouzon, 93 S. C. 
161, 163, 76 S. E. 201, Ann Cas. 1914C, 
731. 

Applies only in actions for recovery 
of real property. — This section applies 
only to actions for the recovery of real 
property, and a plea filed hereunder 
will not serve as a plea of the statute 
of limitations in an action other than 
for the recovery of real property. See 
Williams v. Halford, 73 S. C. 119, 53, S. 
E. 88, 90. 

Just what actions may and may not be 
considered actions for the recovery of 
real property within the meaning of 
either of the sub-sections composing 
this section, has been the source of much 
litigation in this state. The treatment 
of this subject has been placed under 
analysis line, III, B. 3, to which refer- 
ence is here made. — Ed. note. 
II. SUBDIVISIONS (1). 

Editor's note. — The phraseology of this 
section has been a fruitful field for much 
litigation in this state. Almost every 
clause contained in this section has been 
construed at least one time by the Su- 
preme Court of this state. Most of the 
decided cases have arisen under sub- 
division (2) of this section. Therefore, 
the major annotations will be found 
under the next analysis line. It will be 
noted that in both of the subdivisions 
the phrase "action for the recovery of 
real property" is used. This phrase has 
been construed in many cases, but since 
most of the cases bear chiefly upon sub- 
division (2), the cases construing the 
phrase quoted above have been dis- 
cussed under analysis line, III, B, 3, a. 
Reference is here made to that treat- 
ment. 

Adverse possession for statutory pe- 
riod confers good title. — Adverse pos- 
session for ten years confers good title 
which may be asserted affirmatively. 
Duren v. Kee, 50 S. C. 444, 27 S. E. 875, 



and the authorities therein cited. See 
also Columbia, etc., R. Co. v. Laurens 
Cotton Mills. 82 S. C. 24, 61 S. E. 1089, 62 
S. E. 1119; Southern Ry. v. Howell, 79 
S. C. 281, 286, 60 S. E. 677; Southern Ry. 
v. Gossett, 79 S. C. 372, 60 S. E. 956; Wil- 
liams v. Halford, 73 S. C. 119, 53 S. E. 88; 
Harman v. Southern Ry., 72 S. C. 228, 51 
S. E. 689; Epperson v. Stansill, 64 S. C. 
485, 42 S. E. 426; Kolb v. Jones, 62 S. C. 
193, 40 S. E. 168; Cave v. Anderson, 50 S. 
C. 293, 27 S. E. 693; Busby v. Florida 
Cent., etc., R. Co., 45 S. C. 312, 23 S. E. 
50; Harrelson v. Sarvis, 39 S. C. 14, 17 S. 
E. 368. 

But tacking of periods of limitations 
is not permitted. — This section has been 
so construed that possession hereunder, 
to be adverse, must have been continued 
by the same person for 10 years, and 
the possession of one cannot be united 
or tacked to that of those under whom 
he claims. Garrett v. Weinberg, 48 S. C. 
28, 26 S. E. 3. 

Death does not toll statute. — In Frady 
v. Ivester, 129 S. C. 536, 125 S. E. 134, it 
is held that the death of a person against 
whom the ten year limitation in this 
section had been running for almost 
eight years did not toll the statute, 
though title passed to a person under 
disability. 

Action under will after 50 years. — 
Child and grandchildren of testator's 
daughter whose ancestors had not been 
in possession for more than 50 years 
could not recover property from suc- 
cessors of daughter's grantees, where 
devise either created fee conditional or 
tenancy in testator's daughter and 
daughter's children at time will took ef- 
fect. McQuage v. Calhoun, 178 S. C. 345, 
183 S. E. 164. 

Ill SUBDIVISION (2). 
A. Common Law Principles. 

Common law did not limit number 
of actions. — At common law there was 
no limit to the number of actions of 
ejectment which a plaintiff might bring 
for the recovery of the same real prop- 
erty, and, as each was based upon the 
fiction of a different lease, entry, and 
ouster, they were not within the prin- 
ciples of res judicata, because the parties 
were not the same, and the cause of 
action was different. Carr v. Mouzon, 
93 S. C. 161, 76 S. E. 201, 202, Ann. Cas. 
1914C, 731. See, also, Columbia Water- 
Power Co. v. Columbia Land & Inv. Co., 
42 S. C. 488, 20 S. E. 378, for a full dis- 
cussion of the common law. And see 
Walsh v. Evans, 112 S. C. 131, 99 S. E. 
546; Tompkins v. Augusta & K. R. Co., 
30 S. C. 479, 9 S. E. 521. 

Section constitutes exception to doc- 
trine of res judicata. — See this catch 
line under analysis line, III, B, 1, treat- 
ing the case of Williams v. Wannamaker, 



Page 209 



Actions for the Recovery of Real Property 



§ 374 



122 S. C. 368, 115 S. E. 637. 

Section radically changes the common 
law procedure. — When this section was 
adopted, radical changes had been made 
in legal procedure. The technical plead- 
ings of the common law and feigned is- 
sues had been abolished. John Doe and 
Richard Roe could no longer sue and 
defend; but actions (with few excep- 
tions) had to be prosecuted and de- 
fended by the real parties in interest. 
The action for "recovery of real prop- 
erty" had been substituted for the com- 
mon-law action of ejectment. This sec- 
tion must be construed in the light of 
these changes. Carr v. Mouzon, 93 S. C. 
161, 76 S. E. 201, 202, Ann. Cas. 1914C, 
731. 

See generally, Geiger v. Kaigler, 15 S. 
C. 271; Turnbull v. Ross, 141 Fed. 649. 
B. The Statutory Requisites. 
1. In General. 

Section "limits" party to two actions. 
— This section was enacted not to give 
two actions to a person who might sue 
to recover real property, but to "limit" 
such a person to two actions. Walsh v. 
Evans, 112 S. C. 131, 99 S. E. 546, 547; 
Tompkins v. Augusta & K. R. Co., 30 
S. C. 479, 9 S. E. 521. 

This section relates to the individual 
bringing an action, and to the class of 
property sought to be recovered in that 
action, and is clearly a restriction on 
what otherwise would be the right of 
that individual in reference to his legal 
status as to that property. In the ab- 
sence of the statute, he could bring as 
many actions as he chose for the re- 
covery of the same real estate. Logan v. 
Jones, 155 S. C. 258, 152 S. E. 518, 519. 

Which means the bringing of the same 
action twice. — This section authorizes 
plaintiff in ejectment to bring the same 
action twice, and does not mean that 
plaintiff's right is limited to the bring- 
ing of two different actions to recover 
the same amount or actions based on 
different facts. Carr v. Mouzon, 93 S. C. 
161, 76 S. E. 201, Ann. Cas. 1914C, 731. 

And relieves defendant from continued 
attacks on his title. — This section was 
enacted, not only to limit the right of 
a person to two actions for the recovery 
of real estate, but it was intended also 
to protect a person in possession of, and 
claiming title to, real estate. Such person 
has a right sometime to be relieved of 
continued attacks on his title by the 
same person, or those claiming under 
him. It is a statute of repose, and should 
be so construed. Logan v. Jones, 155 S. 
C. 258, 152 S. E. 518, 520, and the au- 
thorities therein cited. 

If an action is not instituted within the 
two year period after the discontinuance 
or verdict in the first action, the title to 
the land is determined to be in the de- 



fendant. Dyson v. Leek, 5 Strob. 141; 
Binda v. Benbow, 11 Rich. 24. 

Section does not apply to defenses. — 
This section forbids the bringing of 
more than two actions, but does not ap- 
ply to a defense. Dent v. Bolar, 125 S. C. 
63, 118 S. E. 26. 

Section constitutes exception to doc- 
trine of res judicata. — Under the general 
doctrine of res judicata a party would 
be prohibited from instituting a second 
action against the same defendant upon 
the same cause of action. In other words, 
the general rule is that the first action 
is res judicata of the second, where the 
same parties and the same issues are in- 
volved. This section, however, consti- 
tutes an exception to the doctrine of res 
judicata, and by this statute a second 
action, which otherwise would be pro- 
hibited, is expressly permitted. See Wil- 
liams v. Wannamaker, 122 S. C. 368, 115 
S. E. 637. 

And the judgment in first action is 
not res judicata of second. — Where a 
second action in ejectment is brought 
after payment of costs of the first and 
within the time specified, the judgment 
in the first action is not res judicata of 
the second. Carr v. Mouzon, 93 S. C. 
161, 76 S. E. 201, Ann. Cas. 1914C, 731, 
and the authorities therein discussed. 

Provided the action falls within this 
section. — In order for the statutory ex- 
ception to apply, the case in question 
must of course fall within this section. 
See Williams v. Wannamaker, 122 S. C. 
368, 115 S. E. 637, wherein it is held 
that a judgment in partition is not with- 
in this section, and is therefore a com- 
plete bar to a second action for the same 
cause between the same parties. 

For illustrations of cases held within, 
and those held to be without, this sec- 
tion, the practitioner is referred to anal- 
ysis line, "Illustrations," III, B, 3, b. 
2. Conditions Enumerated and Necessity 
of Compliance, 
a. Generally. 

Conditions precedent to institution of 
second action. — Before a second action 
can be brought for the recovery of real 
property, two conditions must be com- 
plied with; (1) The costs of the previous 
action must "be first paid;" and (2) the 
second action must be brought within 
two years from the termination of the 
first action, either by the "rendition of 
the verdict or judgment in the first ac- 
tion" or "the granting of a non-suit or 
discontinuance therein." If either or 
both of these conditions be not first 
complied with, then there is no author- 
ity for the bringing of a second action, 
and it must, therefore, necessarily fail. 
Columbia Water-Power Co. v. Columbia 
Land & Inv. Co., 42 S. C. 488, 20 S. E. 
378, 380. See, also, Logan v. Jones, 155 S. 



374 



Code of Civil Procedure 



Page 210 



C. 258, 152 S. E. 518; Stewart- Jones Co. v. 
Hankins, 155 S. C. 234, 152 S. E. 430, 431. 

Compliance with named conditions is 
mandatory. — Subdivision 2 of this sec- 
tion was not intended only as a benefit 
to the defendant but it fixes a condi- 
tion precedent to the privilege accorded 
to the plaintiff. Peterman v. Pope, 74 S. 
C. 296, 54 S. E. 569. 

And may not be waived by defendant 
— The defendant does not waive plain- 
tiffs failure to comply with this section 
by failing to have the costs regularly 
taxed, or by failing to claim or demand 
payment of the costs, or by going to 
trial, knowing that the costs had not 
been paid. Columbia Water-Power Co. 
v. Columbia Land & Inv. Co., 42 S. C. 
488, 20 S. E. 378, 381. See, also, Stewart- 
Jones Co. v. Hankins, 155 S. C. 234, 
152 S. E. 430. 

Nor dispensed with by court order. — 
A provision in an order of discontinu- 
ance that the plaintiff desires to let his 
action fall "for the purpose of bringing 
a new action," does not and cannot dis- 
pense with the requirements of this sec- 
tion. Columbia Water-Power Co. v. Co- 
lumbia Land & Inv. Co., 42 S. C. 488, 20 
S. E. 378, 382. 

b. Payment of Costs. 

Compliance with requirements should 
be affirmatively alleged. — It is the duty 
of plaintiff to allege in his complaint 
the performance of the requirement as 
to the payment of the cost of the first 
action in order to show his right to 
maintain the second action. Peterman 
v. Pope, 74 S. C. 296, 54 S. E. 569, 570. 

Otherwise it is assumed that there are 
unpaid costs. — The contention has been 
made that until the costs of the previous 
action have been paid, it cannot be as- 
sumed that there were any such costs. 
But this position is said to be untenable. 
See Columbia Water-Power Co. v. Co- 
lumbia Land & Inv. Co., 42 S. C. 488, 20 
S. E. 378, 382. 

And if not alleged then defendant may 
show noncompliance. — If the plaintiff 
does not affirmatively show payment of 
costs, as he should do, then the defend- 
ant may be permitted to amend his an- 
swer before trial so as to allege such 
nonpayment. Peterman v. Pope, 74 S. C. 
296, 54 S. E. 569. 

And plaintiff's defective pleading is 
not waived by filing answer. — If this be 
a defect appearing on the face of the 
complaint, the objection is not waived 
by answer without stating the objection, 
but may be urged on the trial, if the 
defendant give five days' notice in writ- 
ing to the opposite party of the grounds 
of such objection. Peterman v. Pope, 74 
S. C. 296, 54 S. E. 569, 570. 

Costs for witnesses may be paid di- 
rectly to witnesses. — In a suit for posses- 



esion of land the prevailing party taxed 
costs for his witnesses individually on 
the subpoena tickets and their affidavits 
of attendance. The losing party paid the 
costs as taxed by the clerk, but did not 
pay them to the defendant or to the 
clerk, but directly to the witnesses them- 
selves, taking their individual receipts, 
and filing the same with the clerk of 
court. In the second action, based upon 
the same cause of action the prevailing 
party could not allege that the losing 
party had not paid the costs, as required 
by this section, before bringing such 
second action, though the prevailing 
party had previously paid the witnesses 
part of their fees. Mitchell v. Barrs, 64 
S. C. 197, 41 S. E. 962, and the authorities 
therein discussed. 

Payment under court order without 
objection, estops plaintiff to deny ex- 
istence of costs. — Where plaintiff, on the 
second trial, under an order of court, and 
without objection, pays into court the 
amount stated by the clerk to be due 
for the costs of the first trial, he is 
estopped to claim on appeal that, as the 
costs were never taxed, there never had 
been any legal costs. Columbia Water- 
Power Co. v. Columbia Land & Inv Co., 
42 S. C. 488, 20 S. E. 378. 

c. The Two Year Limitation 

The word "or" is used disjunctively. — 
The word "or" used in this subdivision is 
used in the disjunctive sense. Love v. 
Turner, 84 S. C. 178, 65 S. E. 1043. 

And limitation commences at verdict 
or judgment. — Under subd. 2 of this sec- 
tion, the two year period begins to run 
either from the verdict "or" judgment. 
The word "or" is used in the disjunctive 
sense. Love v. Turner, 84 S. C. 178, 65 
S. E. 1043. 

Or at granting of order of discontin- 
uance. — Where a first action is discon- 
tinued on plaintiff's motion, the time 
within which a second action may be 
brought begins to run from the granting 
of the order allowing the discontinuance. 
Columbia Water-Power Co. v. Columbia 
Land & Inv. Co., 42 S. C. 488, 20 S. E. 
378. 

Or at granting of nonsuit. — Under this 
section the two years begin to run from 
the date of the granting the nonsuit in 
the first action, and not from the date of 
discontinuance of appeal or order dis- 
missing the appeal. Richardson v. Riley, 
67 S. C. 53, 45 S. E. 104, approving Trim- 
mier v. Trail, 2 Bailey 480, wherein the 
court said: "When an appeal from an 
order of nonsuit has been dismissed or 
abandoned, the order of nonsuit, and 
not the dismissal of the appeal, is to be 
regarded as the legal termination of the 
suit, and the pendency of the appeal 
cannot be pleaded in abatement to a 
new action for the same cause brought 



Page 211 



Actions for the Recovery of Real Property 



§ 374 



in the interval between the order of 
nonsuit and the dismissal of the appeal." 

And judgment need not be entered on 
verdict. — It is unnecessary and imma- 
terial whether a judgment is entered on 
the verdict in the first action. Love v. 
Turner, 84 S. C. 178, 65 S. E. 1043, hold- 
ing also that where the agreed "case" 
prepared for appeal stated "the jury 
found for the defendant and judgment 
was entered accordingly," and the Su- 
preme Court "affirmed the judgment," 
the parties are estopped, in a subsequent 
case, to deny that a judgment was en- 
tered on the verdict. See, also, Columbia 
Water-Power Co. v. Columbia Land & 
Inv. Co., 42 S. C. 488, 20 S. E. 378, where 
the first action was discontinued on mo- 
tion. 

On this point it is well for the practi- 
tioner to bear in mind that the English 
cases and the early South Carolina cases, 
to the contrary (decided prior to the 
adoption of the code of civil procedure), 
are not applicable. See Columbia Water- 
Power Co. v. Columbia Land & Inv. Co., 
42 S. C. 488, 20 S. E. 378, 381. 

Which may not always be done. — It 
sometimes happens that in actions for 
the recovery of real estate a verdict is 
returned upon which no judgment could 
be entered. See Love v. Turner, 84 S. C. 
178, 65 S. E. 1043, 1044, and the ilustra- 
tion there given. See, also, Columbia 
Water-Power Co. v. Columbia Land & 
Inv. Co., 42 S. C. 488, 20 S. E. 378, 380, 
wherein the court said: "It is somewhat 
difficult to understand how any judg- 
ment could be entered upon an order 
of discontinuance, especially when it is 
granted on the motion of the plaintiff." 

Statute not suspended by appeal. — An 
appeal does not suspend the running of 
the limitation in this section. This is 
shown by the use of the words "ver- 
dict," "nonsuit" and "discontinuance," 
which as used herein apply to the ter- 
minations of actions only in the circuit 
court, and not in the Supreme Court. 
Love v. Turner, 84 S. C. 178, 65 S. E. 
1043, 1044. 

3. Actions for Recovery of Real Estate, 
a. General Principles 

The word "action" defined. — The word 
"action" is used in this section in the 
sense that it is defined in section 2 and 
in section 352 of this code, namely, an 
"ordinary proceeding, by which a party 
prosecutes another party for the en- 
forcement of a right." Walsh v. Evans, 
112 S. C. 131, 99 S. E. 546. See, also, Co- 
lumbia Water-Power Co. v. Columbia 
Land & Inv. Co., 47 S. C. 117, 25 S. E. 
48, 51. 

Under this section the dismissal of a 
second action for failure to pay the costs 
of the first action precludes the plaintiff 
from bringing another action for the re- 



covery of the land. In other words, such 
proceeding, though dismissed, consti- 
tutes the second action referred to in 
this section. Columbia Water-Power Co. 
v. Columbia Land & Inv. Co., 47 S. C. 
117, 25 S. E. 48, 50. 

Character of action is determined by 
pleadings. — The determination of the 
question whether a particular proceed- 
ing is an action for the recovery of real 
property, within the meaning of this 
section, is fixed by the events which the 
pleaders have recited, the one to enforce 
a right and the other to resist such en- 
forcement, or to set up another right. 
It makes no difference what terminology 
the pleaders may chance to give to the 
proceeding. See Walsh v. Evans, 112 S. 
C. 131, 99 S. E. 546. The issues that arise 
out of the pleadings are controlling. Id. 
In Elmore v. Davis, 49 S. C. 1, 26 S. E. 
898, it is said that the character of the 
action is to be determined by the plain- 
tiff's complaint. And in Southern Cot- 
ton Oil Co. v. Shelton, 220 Fed. 247, it 
is held that whether or not an action is 
within this section must be determined 
by the essential nature of the complaint, 
in view of the facts alleged and the 
prayer for relief. To the same effect is 
Hall v. Boatwright, 58 S. C. 544, 36 S. 
E. 1001, 79 Am. St. Rep. 864. But the 
complaint may not, in every case, be the 
source of information by which to de- 
termine the character of the action. It 
must be remembered that it is the issue, 
as made up by the pleadings, which 
governs the character of the action. It 
makes no difference by whom the issue 
is made. See Walsh v. Evans, supra, 
wherein the defendant's answer ten- 
dered the issue. 

And the addition of new parties does 
not change character of suit. — Where 
two actions for the recovery of the same 
real estate against the same defendant 
have been brought and dismissed, a 
third action cannot be brought and sus- 
tained by the same parties merely by 
adding other parties as plaintiffs. Logan 
v. Jones, 155 S. C. 258, 152 S. E. 518. The 
result that would follow if such proce- 
dure were permitted, is clearly stated 
by the court, in the following language: 

"If (such procedure were permitted) 
then a party may bring his action for 
the recovery of real estate, and dismiss 
and pay costs, bring his second within 
two years, dismiss and pay costs, add 
some other party, real or fictitious, and 
bring another action despite the fact that 
he has had two actions dismissed, and 
so on ad infinitum. The statute would 
be a nullity because it could be evaded 
by merely adding new parties as plain- 
tiffs." (Parenthesis supplied.) 

The question whether or not the newly 
added parties plaintiff could bring an 



§ 374 



Code of Civil Procedure 



Page 212 



action against the defendant for any al- 
leged interest they might have, if they 
did not claim title through the parties 
who brought the first two actions, and 
therefore barred from a third, or from 
the same common source, was raised but 
was not decided in Logan v. Jones, 155 
S. C. 258, 152 S. E. 518, 520. 

Possession of land is essentially in- 
volved. — An action "for recovery of real 
property" presupposes that the defend- 
ant therein is in possession of the land 
in dispute, and it is predicated upon his 
refusal to surrender the possession there- 
of to the plaintiff. Therefore a second 
action for the same land must be for the 
same cause. Carr v. Mouzon, 93 S. C. 
161, 76 S. E. 201, 203, Ann. Cas. 1914C, 
731. 

And "recovery" thereof must be 
sought. — Under this subdivision, both 
the first and the second action must be 
to "recover" the land in question, in 
order to bar the institution of a third 
suit. Foster v. Foster, 81 S. C. 307, 62 S. 
E. 320, 321. 

Though this need not be sole relief. — 
This section, in view of section 487, 
which permits the joinder of several 
causes of action, legal or equitable, or 
both, in the same suit, is not limited in 
its application to actions in which the 
sole relief sought is the recovery of real 
estate or possession thereof, but applies 
as well to actions in which two causes 
are joined. Southern Cotton Oil v. Shel- 
ton (S. C), 220 Fed. 247. 

b. Illustrations. 

Enjoining appropriation of land. — An 
action to enjoin a railroad company from 
appropriating land for its road, and for 
damages for such appropriation, is not 
an action "for the recovery of real prop- 
erty, or the recovery of the possession 
thereof," within the meaning of this sec- 
tion. Tompkins v. Augusta & K. R. Co., 
30 S. C. 479, 9 S. E. 521. 

Section applies to suits by trustee. — 
This section applies to suits brought by 
a trustee for an infant cestui que trust. 
Benbow v. Levi, 50 S. C. 120, 27 S. E. 
655. 

But it does not apply to suit brought 
to ascertain if land is subject to trust 
deed. — A suit, brought by a trustee, to 
determine whether land then in posses- 
sion of defendant in such action is sub- 
ject to the trust deed, is not an action 
for the recovery of real estate within 
the meaning of this section. Martin v. 
Ragsdale, 71 S. C. 67, 50 S. E. 671. 

Partition suit is not action to "re- 
cover" land. — This section does not pre- 
clude a suit to "partition" land, because 



more than two years before bringing the 
suit the plaintiff discontinued an action 
brought to "recover" the land. Foster v. 
Foster, 81 S. C. 307, 62 S. E. 320, 321. See, 
also, Elmore v. Davis, 49 S .C. 1, 26 S. E. 
898. 

A complaint, which purports to seek 
partition, does not state a cause of action 
in partition where it is alleged that the 
whole title is in other parties to the 
action than the defendant in possession. 
Such allegations in effect demand re- 
covery against the defendant in posses- 
sion and really constitute an action of 
ejectment, so that if two actions for the 
recovery of the same land have pre- 
viously been instituted, then the present 
action, though styled a partition suit, 
must fail. Mitchum v. Shaw, 98 S. C. 
175, 82 S. E. 401. 

Where two actions for recovery of 
land were discontinued, a subsequent 
action against the same defendant in 
possession by the same plaintiffs for 
partition, though defendant has no in- 
terest in the land, is in effect an action 
for the recovery of the land and is not 
maintainable under this section. Mit- 
chum v. Shaw, 98 S. C. 175, 82 S. E. 401. 

Unless the issue as to superiority of 
title is involved. — But a partition suit 
involving the issue of whether defend- 
ant's title is paramount to that of plain- 
tiff, is an "action for recovery of real 
property" within the meaning of this 
section. Walsh v. Evans, 112 S. C. 131, 
99 S. E. 546, holding that two such par- 
tition suits previously instituted, bar the 
plaintiff's right to institute another suit 
seeking to recover possession of the 
property. The Foster case and the El- 
more case, cited supra, are discussed 
and distinguished. 

There are forms of action by which the 
title to real property may be brought in 
issue and determined, as, for instance, an 
action for damages for trespass in the 
nature of common-law action of tres- 
pass quare clausum fregit, an action for 
rents and profits, and actions for fore- 
closure of mortgage or partition in 
which a defendant sets up an independ- 
ent legal title in himself, but none of 
these are actions "for recovery of real 
property," and therefore they do not fall 
within the provisions of this section. 
Carr v. Mouzon, 93 S. C. 161, 76 S. E. 201, 
203, Ann. Cas. 1914C, 731, citing Tomp- 
kins v. Railroad Co., 30 S. C. 479, 9 S. E. 
521; Elmore v. Davis, 49 S. C. 1, 26 S. E. 
898; Foster v. Foster, 81 S. C. 307, 311, 
62 S. E. 320. See, also, Frederick v. 
Chapman, 144 S. C. 137, 142 S. E. 247, 
249. 



§ 375. Seizin within ten years — when necessary in action or defense 
founded on title, etc. — No cause of action, or defense to an action, founded 



Page 213 



Actions for the Recovery of Real Property 



§ 377 



upon a title to real property, or to rents or services out of the same, shall 
be effectual, unless it appear that the person prosecuting the action or 
making the defense, or under whose title the action is prosecuted or the 
defense is made, or the ancestor, predecessor, or grantor of such person, was 
seized or possessed of the premises in question within ten years before the 
committing of the act in respect to which such action is prosecuted or de- 
fense made. 

1932 Code, § 375; Civ. P. '22, § 318; Civ. P. '12, § 124; Civ. P. '02, § 99; 1870 (14) 
§ 102; 1873 (15) 496. 



See § 377 and the note thereto. 

See generally. Love v. Turner, 71 S. 



C. 322, 330, 51 S. E. 101. 



§ 376. Action after entry, or right of entry. — No entry upon real estate 
shall be deemed sufficient or valid as a claim, unless an action be com- 
menced thereupon within one year after the making of such entry, and 
within ten years from the time when the right to make such entry de- 
scended or accrued. 

1932 Code, § 376; Civ. P. '22, § 319; Civ. P. '12, § 125; Civ. P. '02, § 100; 1870 (14) 
§ 103; 1873 (15) 496. 



§ 377. Possession — when presumed — occupation when deemed under legal 
title. — In every action for the recovery of real property, or the possession 
thereof, the person establishing a legal title to the premises shall be pre- 
sumed to have been possessed thereof within the time required by law; 
and the occupation of such premises by any other person shall be deemed 
to have been under and in subordination to the legal title, unless it ap- 
pear that such premises have been held and possessed adversely to such 
legal title for ten years before the commencement of such action. 

1932 Code, § 377; Civ. P. '22, § 320; Civ. P. '12, § 126; Civ. P. '02, § 101; 1870 (14) 
§ 104; 1873 (15) 496. 



Prior law provided for 20 year limita- 
tion. — Prior to 1873 when this section 
was adopted, a twenty year limitation 
applied to the cases herein mentioned, 
instead of the ten year limitation now 
provided for. See Sudduth v. Sumeral, 
61 S. C. 276, 39 S. E. 534, 536, 85 Am. St. 
Rep. 883. 

An adverse possession commencing 
prior to the insertion in this section of 
the ten year limitation provision, must 
have continued for the full 20 year per- 
iod before it could ripen into a right. 
Hodge v. Hodge, 56 S. C. 263, 34 S. E. 
517, 523; Lyles v. Roach, 30 S. C. 291, 9 
S. E. 334; Rehkopf v. Kuhland, 30 S. C. 
234, 9 S. E. 99. 

Proof of legal title raises presumption 
of possession for 10 years. — This section 
has been construed several times to 
mean that, where a person proves legal 
title to real property, the person so 
proving the legal title is presumed to 
have been in possession of the premises 
for 10 years. Love v. Turner, 71 S. C. 322, 
51 S. E. 101; Dickson v. Epps, 104 S. C. 
381, 89 S. E. 354; Atlantic Coast Line R. 
Co. v. Baker, 143 S. C. 445, 141 S. E. 



688, 697; Moseley v. Hankinson, 25 S. 
C. 519, 524. 

And allegation of the fee is equiva- 
lent to allegation of possession. — The al- 
legation of ownership in fee simple car- 
ries with it the allegation of possession, 
for the possession is presumed to follow 
the legal title. Shute v. Shute, 79 S. C. 
420, 60 S. E. 961, 963; Stokes v. Murray, 
102 S. C. 395, 87 S. E. 71. 

And burden is then on opposite party 
to show adverse possession. — In an ac- 
tion to recover land, where plaintiffs 
have proved a good legal title in them- 
selves from their ancestor, thus raising 
the presumption mentioned in this sec- 
tion, the burden is on the defendant to 
show that his possession was adverse. 
Stokes v. Murray, 102 S. C. 395, 87 S. E. 
71. See, also, Dickson v. Epps, 104 S. C. 
381, 89 S. E. 354. 

But actual occupancy is unnecessary 
to create presumption. — In Haithcock v. 
Haithcock, 123 S. C. 61, 115 S. E. 727, 
730, the Supreme Court approved a 
charge to the jury which stated the law 
to be that the presumption mentioned in 
this section was effective if the party 



§ 377 



Code of Civil Procedure 



Page 214 



shows title, even though he may never 
have seen the land in question. 

And it is only destroyed by adverse 
occupancy for 10 years. — The presump- 
tion stated in this section holds good 
unless and until someone else goes on 
the land and occupies it adversely for 
10 years. Haithcock v. Haithcock, 123 S. 
C. 61, 115 S. E. 727, 730; Love v. Turner, 
71 S. C. 322, 51 S. E. 101, 104. Adverse 
possession gives no right until the ex- 
piration of 10 years. Ellen v. Ellen, 16 
S. C. 132, and therefore a deed given by 
a claimant within the 10 year period can 
convey no title. Id. 

Which means 10 consecutive years. — 
The period of limitation mentioned in 
this section must be continuous, and the 
taking of several separate possessions is 
not permitted to make up the required 
10 year period. See Hodge v. Hodge, 56 
S. C. 263, 34 S. E. 517, 523; Haithcock v. 
Haithcock, 123 S. C. 61, 115 S. E. 727, 
730. 

The possession must be continuous — 
not a possession now and a possession 
some other time — not a sporadic posses- 
sion, but the continuous possession for 
10 years in order to ripen such a posses- 
sion into a title. Haithcock v. Haithcock, 
123 S. C. 61, 115 S. E. 727, 730. 

The possession of a landlord through 
successive tenants is deemed continuous. 
Mahoney v. Southern Ry., 82 S. C. 215, 
64 S. E. 228. 

But possession of the heir may be 
tacked to that of ancestor. — Bardin v. 
Commercial Ins. & Trust Co., 82 S. C. 
358, 64 S. E. 165; Powers v. Smith, 80 
S. C. 110, 61 S. E. 222; Brucke v. Hub- 
bard, 74 S. C. 144, 54 S. E. 249; Epper- 
son v. Stansill, 64 S. C. 485, 42 S. E. 426. 

Although the grantee of a disseisor 
cannot unite his possession with that of 
the disseisor. — Epperson v. Stansill, 64 
S. C. 485, 42 S. E. 426, 427, citing Pegues 
v. Warley, 14 S. C. 180; Ellen v. Ellen, 
16 S. C. 132; Burnett v. Crawford, 50 S. 
C. 161, 27 S. E. 645. 

The distinction between the two situa- 
tions just referred to is that when pos- 
session is cast by operation of law from 
ancestor to heir in possession, there is 
no break in the continuity of possession, 
whereas, in the case of disseisor and 
grantee, there is a new entry and a 
break in the continuity of possession. 
Epperson v. Stansill, 64 S. C. 485, 42 S. 
E. 426. 

Nor may the possession of successive 
purchasers be united. — Pegues v. War- 
ley, 14 S. C. 180. 

Possession denotes existence of a group 
of facts. — Holmes in his common law, 
page 214, has made a luminous state- 
ment in regard to the term "possession," 
which was regarded with approval in 



Dickson v. Epps, 104 S. C. 381, 89 S. E. 
354, 355. 

"The word 'possession' denotes a group 
of facts. Hence when we say of a man 
that he has possession, we affirm direct- 
ly that all the facts of a certain group 
are true of him, and we convey indirect- 
ly or by implication that the law will 
give him the advantage of the situation." 

And such facts alone may be testi- 
fied to. — A witness in a suit which is 
being defended on the ground of adverse 
possession may relate acts of possession 
or ownership, but the witness cannot say 
who has been in possession. Dickson v. 
Epps, 104 S. C. 381, 89 S. E. 354. 

And to be "adverse" it must evidence 
ownership of land. — "Adverse posses- 
sion" means such possession as evidences 
or shows to the jury the right of the 
claim to the ownership of the land. 
Haithcock v. Haithcock, 123 S. C. 61, 115 
S. E. 727, 730. And a mere trespass is 
insufficient. See Carr v. Mouzon, 86 S. 
C. 461, 68 S. E. 661, post this note. 

The giving of a deed or mortgage by 
one in possession of land is ordinarily 
evidence of assertion of title. Carr v. 
Mouzon, 86 S. C. 461, 68 S. E. 661. 

In an action of trespass quare clausum 
fregit, the defendant may justify his en- 
try on plaintiff's actual possession by 
showing title in himself. Lyles v. Fel- 
lers, 138 S. C. 31, 136 S. E. 13. But this 
may not be done by showing title in a 
third person with whom the defendant 
is unconnected. Id. 

There can be no adverse claim against 
any cotenants unless the claim is ad- 
verse to all the cotenants. Scaife v. 
Thomson, 15 S. C. 337. See, also, Green 
v. Cannady, 71 S. C. 317, 51 S. E. 92. 

The minority of one tenant in common 
will protect the entire property held in 
common from the operation of the stat- 
ute of limitations in favor of an adverse 
claimant in possession. Garrett v. Wein- 
berg, 48 S. C. 28, 26 S. E. 3. 

Mere possession for 10 years by pur- 
chaser from a mortgagor of part of mort- 
gaged lands , after the condition is brok- 
en, is no bar to a foreclosure against the 
mortgagor and the purchaser. Norton v. 
Lewis, 3 S. C. 25, reaffirming Wright v. 
Eaves, 5 Rich. Eq. 81. See, also, Lynch 
v. Hancock, 14 S. C. 66; Clark v. Smith, 
13 S. C. 585. But as to purchaser against 
a judgment, see Goldsmith v. Jacobs, 14 
S. C. 624. 

As to possession under color of title, 
and actual occupancy of part of a tract 
of land, see the section immediately fol- 
lowing and the note thereto. 

So as to ripen into good title. — In view 
of this section, and the four sections 
immediately following, an occupancy 
which is a mere trespass without claim 
of title cannot ripen into a good title 



Page 215 



Actions for the Recovery of Real Property 



§ 377 



however long continued. Carr v. Mou- 
zon, 86 S. C. 461, 68 S. E. 661. 

A person who has been in adverse pos- 
session of land for the statutory period 
has a good and valid title by virtue of 
such adverse possession, which may be 
affirmatively asserted against one not 
protected by some disability. The statute 
of limitations has a double aspect; be- 
sides offering a shield of defense, it may, 
under certain circumstances, give title 
capable of being asserted actively. Lyles 
v. Fellers, 138 S. C. 31, 136 S. E. 13, 16, 
and the authorities there cited. 

A person going into possession of land 
under contract to purchase it, cannot 
acquire title against the vendor until the 
payment of the purchase money. Black- 
well v. Ryan, 21 S. C. 112. 

But title will not ripen as against 
State.— Kolb v. Jones, 62 S. C. 193, 40 S. 
E. 168. Unless the state has actually or 
presumptively parted with title. Epper- 
son v. Stansill, 64 S. C. 485, 42 S. E. 
426. 

Or to rebut the statutory presumption. 
— In an action by tenants in common for 
20 years in the face of notorious and ex- 
clusive possession, the use and exercise 
of authority incident to exclusive and 
adverse ownership is sufficient to rebut 
the presumption that the possession was 
subordinate to the legal title, and is suf- 
ficient to establish the presumption of a 
grant. Powers v. Smith, 80 S. C. 110, 61 
S. E. 222. 

But possession under legal title once 
commenced is presumed to continue. — 
Where a person's possession commenced 
under a legal title, so that he and others 
were co-tenants, the continuance of the 
possession was, under this section, pre- 
sumptively under the legal title. Sibley 
v. Sibley, 88 S. C. 184, 70 S. E. 615, Ann. 
Cas. 1912C, 1170. 

Where, under a deed from tenant in 
common purporting to convey the en- 
tire fee, the grantee goes into possession 
after recording the deed, and holds the 
lands adversely as his own, it amounts 
to an ouster of the other tenants in com- 
mon, and gives such holder, after 10 
years, title by adverse possession against 
the tenants in common. Sudduth v. Sum- 
eral, 61 S. C. 276, 39 S. E. 534, 85 Am. St. 
Rep. 883. 

But actual notice of ownership is not 
necessary. — Under an instruction in a 
suit for partition, in which defendants 
set up exclusive title to the premises, 
the fact that a tenant is not bound to 
give actual notice to his co-tenant of 
ouster, but he may do so by conduct, 
and that holding exclusively, adversely, 
and openly are the highest acts in the 
power of a disseisor to indicate his in- 
tention, and that the law presumes pos- 
session unexplained to be adverse, is 



sufficient. Powers v. Smith, 80 S. C. 110, 
61 S. E. 222. 

And the possession must be hostile. — 
In order to constitute an adverse pos- 
session there must be a hostile holding, 
a holding claiming the land as the hold- 
er's own, a claiming that he has a right 
to hold it against the world. Haithcock 
v. Haithcock, 123 S. C. 61, 115 S. E. 727, 
730. 

Which presupposes a trespass. — Ad- 
verse possession necessarily presupposes 
a trespass upon the rights of the lawful 
owner. Moseley v. Hankinson, 25 S. C. 
519, 524. Hence, purchasers of the inter- 
est of a life tenant cannot be regarded 
as trespassers upon the rights of re- 
maindermen until the life estate ter- 
minates. Id. See also, Sutton v. Clark, 59 
S. C. 440, 38 S. E. 154, 82 Am. St. Rep. 
848; Massey v. Duren, 3 S. C. 34. 

Where a woman, married before the 
constitution of 1868, did not have the 
right to the possession of her land ac- 
quired before that time until the death 
of her husband, the statute did not com- 
mence to run against her until her hus- 
band's death. Garret v. Weinberg, 48 S. 
C. 29, 26 S. E. 3. See also, Rawles v. 
Johns, 54 S. C. 394, 32 S. E. 451: Boy- 
kin v. Ancrum, 28 S. C. 486, 6 S. E. 305, 
13 Am. St. Rep. 698; Moseley v. Hankin- 
son, 25 S. C. 519; Covar v. Cantelou, 25 
S. C. 35; Banister v. Bull, 16 S. C. 220; 
Bell v. Talbird, Rich. Eq. 361; Joyce v. 
Gunnels, 2 Rich. Eq. 259. 

But the occasional intrusion of a tres- 
passer will not interrupt the continuity 
of adverse possession. Love v. Turner, 78 
S. C. 513, 59 S. E. 529. See, also, Carr v. 
Mouzon, 86 S. C. 461, 68 S. E. 661. 

On an issue whether the possession of 
M., under whom plaintiff claimed, was 
adverse or permissive, it was proper to 
charge that permissive possession could 
not avail against a paper title. Carr v. 
Mouzon, 86 S. C. 461, 68 S. E. 661. 

And the character thereof is a ques- 
tion for the jury. — The character of the 
possession is a question for the jury. 
Cantey v. Piatt, 2 McCord, 260; Hill v. 
Saunders, 6 Rich. 62; Abel v. Hutto, 8 
Rich. 42. Where one claims title to lands 
by adverse possession, the question 
whether such possession is, in fact, ad- 
verse is for the determination of the 
jury. Harrington v. Wilkins, 2 McCord, 
289, approved in Lyles v. Fellers, 138 S. 
C. 31, 136 S. E. 13, 17; Stokes v. Murray, 
95 S. C. 120, 78 S. E. 741. 

Which question must be clearly shown. 
— Where the question is whether a party 
has acquired title to real estate by ad- 
verse possession for a period of 10 years, 
within the meaning of this section, such 
possession must be clearly proved and 
shown. Stokes v. Murray, 95 S. C. 120, 



§ 377 



Code of Civil Procedure 



Page 216 



78 S. E. 741. See, also, Ellen v. Ellen, 16 
S. C. 132. 

A party defending under claim of ad- 
verse possession may show that he gave 
a mortgage and an option for the timber 
on the land, as evidence of the character 
of his possession. Dickson v. Epps, 104 
S. C. 381, 89 S. E. 354. 

Tax receipts evidencing payment of 
taxes are admissible to show claim of 
ownership of land, but they do not sus- 
tain such claim where the taxes are 
paid under contract with the real own- 
er. Ellen v. Ellen, 16 S. C. 132. 

A parol partition between tenants in 
common, and exclusive possession of one 
of the cotenants thereunder, is evidence 
of ouster from which adverse possession 
of the tenant who holds under such 
partition may begin against the others 
and ripen into a title. Carr v. Mouzon, 
86 S. C. 461, 68 S. E. 661. See also, Mole 
v. Folk, 45 S. C. 265, 22 S. E. 882; Stone 
v. Fitts, 38 S. C. 393, 394, 17 S. E. 136, 
holding that proof of ouster is necessary 
to claim of adverse possession between 
cotenants. But proof of exclusive posses- 
sion for the statutory period raises a 
presumption of ouster by a cotenant. 
Powers v. Smith, 80 S. C. 110, 61 S. E. 
222. 

And if relevant testimony on such 
issue exists a nonsuit is not permitted. — 
Where there is any competent relevant 
testimony to go to the jury, on the ques- 
tion of the statute of limitation or ad- 
verse possession, a nonsuit cannot be 
granted. Stokes v. Murray, 95 S. C. 120, 
78 S. E. 741. 

But nonsuit is proper where essential 
requirements are not proved. — Where 
the plaintiff in an action to recover real 
estate does not claim title from the same 



source as defendant, and fails to show 
title in himself or in those from whom 
he claims, either by grant or length of 
possession sufficient to authorize the 
presumption of a grant, or adverse pos- 
session, he should be nonsuited. Hodge 
v. Hodge, 56 S. C. 263, 34 S. E. 517, giv- 
ing a detailed discussion of what the 
plaintiff must show in order to recover 
in such an action. 

Adverse possession and presumption 
of title will run against the legal title in 
a trustee and the right thereunder of 
beneficiaries. Young v. McNeill, 78 S. C. 
143, 59 S. E. 986. See also, Pope v. Pat- 
terson, 78 S. C. 334, 58 S. E. 945; Few v. 
Keller, 63 S. C. 154, 41 S. E. 85; Benbow 
v. Levi, 50 S. C. 120, 27 S. E. 655; Trus- 
tee v. Jennings, 40 S. C. 168, 18 S. E. 
257, 891, 42 Am. St. Rep. 854. 

A remainderman is not affected by the 
adverse possession against a life tenant. 
Mitchell v. Cleveland, 76 S. C. 432, 57 S. 
E. 33; Bolt v. Sullivan, 173 S. C. 24, 174 
S. E. 491. 

A guardian cannot assert adverse pos- 
session against his ward. Scaife v. Thom- 
son, 15 S. C. 337. 

Adverse possession cannot give title to 
a town. Crocker v. Collins, 37 S. C. 327, 
328, 15 S. E. 951, 34 Am. St. Rep. 752. 

Adverse possession, begun in 1883, is 
controlled by this section, then in force. 
Johnson v. Cobb, 29 S. C. 372, 7 S. E. 601. 

See generally, as to adverse posses- 
sion, Lloyd v. Rawl, 63 S. C. 219, 41 S. E. 
312 — claiming title under common an- 
cestor — disclaiming title, Langston v. 
Cothran, 78 S. C. 23, 58 S. E. 956. 

For a recent general discussion of ad- 
verse possession see Weston v. Morgan, 
162 S. C. 180, 160 S. E. 436. 



§ 378. Occupation under written instrument, etc. — Whenever it shall 
appear that the occupant, or those under whom he claims, entered into the 
possession of premises under claim of title, exclusive of any other right, 
founding such claim upon a written instrument, as being a conveyance 
of the premises in question, or upon the decree or judgment of a competent 
court, and that there has been a continued occupation and possession of 
the premises included in such instrument, decree, or judgment, or of some 
part of such premises under such claim for ten years, the premises so 
included shall be deemed to have been held adversely; except that where 
the premises so included consist of a tract divided into lots, the possession 
of one lot shall not be deemed a possession of any other lot of the same 
tract. 

1932 Code, § 378; Civ. P. '22, § 321; Civ. P. 'M, § 127; Civ. P. '02, § 102; 1870 (14) 
§ 105; 1873 (15) 496. 



In general. — There is a material dif- 
ference between proving a deed, as a 
part of a chain of title, and introducing 
a paper to show the extent of a party's 
possession. Allen v. Johnson, 2 McMul. 



495; Kennedy v. Kennedy, 86 S. C. 483, 
68 S. E. 664, 669. 

Adverse possession may be founded 
on what we sometimes call a 'color of 
title,' as a deed of conveyance or a de- 



Page 217 



Actions for the Recovery of Real Property 



§ 378 



cree of the court; or a party may enter 
upon land without any paper title at all. 
Sudduth v. Sumeral, 61 S. C. 276, 39 S. 
E. 534, 536, 85 Am. St. Rep. 883. 

As to effect of occupancy of land not 
under paper title, see § 380, and the note 
thereto. 

An action for damages for trespass to 
property of which plaintiff was in pos- 
session could not be defeated on ground 
that one deed dated in 1914 was not 
sufficient to prove plaintiffs title to 
the property, where deed showed that 
plaintiff was in lawful possession and 
no one offered to show a paramount 
title, and alleged trespass was against 
plaintiff's possession. Macedonia Baptist 
Church v. City of Columbia, 195 S. C. 
60, 10 S. E. (2d) 350. 

Named sources of color of title are ex- 
clusive. — Under this section it is clear 
that color of title may consist only of 
a written instrument, or a decree or 
judgment of a court. Lyles v. Fellers, 138 
S. C. 31, 136 S. E. 13, 17. 

A written agreement to submit a dis- 
pute as to the title to land to arbitration, 
which did not designate the arbitrators, 
and on which persons not shown to have 
been the arbitrators, indorsed a decision 
in favor of one of the parties, was a 
sufficient written instrument to consti- 
tute color of title under this section. Fore 
v. Berry, 94 S.' C. 71, 78 S. E. 706, 707, 
Ann. Cas., 1915A, 955. 

Where a railroad charter does not give 
the railroad company a presumptive 
grant of lands occupied, and specifically 
provides that where an agreement can- 
not be reached with the land owner the 
lands must be acquired by condemna- 
tion, then such charter provisions cannot 
be considered color of title upon which 
to base adverse possession of a right of 
way. Willard v. Southern Ry. Co., 158 S. 
C. 522, 155 S. E. 833. See, also, Atlantic 
Coast Line R. Co. v. Baker, 143 S. C. 445, 
141 S. E. 688, 702. 

Purpose of color of title. — The object 
of color of title is not to pass title, but 
to define the extent of the claim, and 
extend the possession beyond the actual 
occupancy to the whole property de- 
scribed in the instrument. Fore v. Berry, 
94 S. C. 71, 78 S. E. 706, 707, Ann. Cas., 
1915A, 955. 

There can be no constructive posses- 
sion without color, of title. Lyles v. 
Fellers, 138 S. C. 31, 136 S. E. 13, 17, 
quoting from 1 Cyc. 1123. 

The provisions of this section consti- 
tute a basis for the holding that an oc- 
cupancy that is a mere trespass without 
claim of title, cannot ripen into a good 
title however long continued. Carr v. 
Mouzon, 86 S. C. 461, 68 S. E. 661. See 
note of this case under the next forego- 
ing section, where is discussed the sub- 



ject of the necessity that possession to 
be "adverse" must evidence ownership 
of the land. 

Written instrument must identify land 
claimed. — The primary function of the 
written instrument required by this sec- 
tion as a condition to extending the 
benefit of constructive possession to a 
claimant under such instrument, is to 
indicate and define the extent of the 
claim, and to identify the land so 
claimed. Frady v. Ivester, 129 S. C. 536, 
125 S. E. 134, 136. 

It is perfectly well settled that the 
instrument under which a party holds 
adversely by color of title must define 
the extent of the claim. Garvin v. Gar- 
vin, 40 S. C. 435, 19 S. E. 79. In other 
words, the writing must designate the 
particular piece of property upon which 
the writing is intended to operate so 
that it can be found. Fore v. Berry, 94 
S. C. 71, 78 S. E. 706, 709, Ann. Cas., 
1915A, 955. 

Where possession is taken under writ- 
ten instrument which an occupant re- 
pudiates as a mortgage, and claims to 
be a conveyance, and where adverse 
possession is proved by evidence other 
than the instrument, the writing may 
be looked to, to define extent of claim- 
ant's possession, under this section. Fra- 
dy v. Ivester, 129 S. C. 536, 125 S. E. 134. 

But no specific description is neces- 
sary. — No minute description of the land 
is necessary, and all that appears to be 
necessary is that there be such a desig- 
nation that the land may be identified 
by the description. Fore v. Berry, 94 S. 
C. 71, 78 S. E. 706, 709, Ann. Cas. 1915A, 
955, citing Kirkland v. Way, 3 Rich. 4, 
45 Am. Dec. 752. 

The fact that there is a variance of a 
few acres between the deed conveying 
a large tract of land and the lines 
marked on the ground is immaterial, 
and does not prevent such deed from 
being color of title. Witcover v. Grant, 
93 S. C. 190, 76 S. E. 274. 

A description as "a 300 acre tract of 
land in dispute between Willis Fore and 
E. B. Berry on January 4, 1886," was 
held sufficient. Fore v. Berry, 94 S. C. 
71, 78 S. E. 706, 709, Ann. Cas. 1915A, 
955. 

But a description which only desig- 
nates the number of acres in the land as 
"a 300 acre tract," is not a sufficient de- 
scription. Humbert v. Brisbane, 25 S. C. 
506, cited in Fore v. Berry, 94 S. C. 71, 
78 S. E. 706, 709, Ann. Cas. 1915A, 955. 

And if description is sufficient, parol 
evidence is admissible. — After a descrip- 
tion is ascertained and determined to 
be sufficient, parol evidence may be re- 
sorted to, to identify the land. Fore v. 
Berry, 94 S. C. 71. 78 S. E. 706, 709, Ann. 



§ 378 



Code of Civil Procedure 



Page 218 



Cas. 1915A, 955, and the authorities 
therein cited. 

Occupancy of part of land under color 
of title extends to whole. — If one is in 

possession of a part of a tract of land, 
under what is in law called a color of 
title, that is, under a deed, or under a 
will, or under a decree of the court, or 
even holding it under a plat and sur- 
vey, or having marked it out and fenced 
it, or something of that kind, if he is 
in possession of a small part of that land, 
that is, if he claims he holds under a 
color of title, his title may not be good, 
his deed may be defective, he may not 
have perfect legal title, still, if he holds 
under color of title and occupies a small 
part, a mere little corner of the land, 
that occupation would extend to the 
limits of his claim under his deed or 
plat, or deed or will under which he may 
hold. So a possession under color of title 
extends the possession to the limits of 
the claim under which one holds, if he 
holds under a color of title. Haithcock 
v. Haithcock, 123 S. C. 61, 115 S. E. 727, 
730; Witcover v. Grant, 93 S. C. 190, 76 
S. E. 274. 

This section, when taken alone, leaves 
some doubt whether the continuous oc- 
cupation "of some part of the premises" 
means a certain definite part of the land 
or any of several parts that the holder 
may happen to occupy at different times. 
This section is clarified when read with 
the next section following, and when 
so read, this section means that when 
the land is used for any of the purposes 
mentioned in the following section, 
though the use be not continuously of 
any particular part, the use will be re- 
garded as adverse possession of the 
whole. Mahoney v. Southern Ry., 82 S. 
C. 215, 64 S. E. 228, 230. 

If a person goes into possession of a 
tract of land as a tenant in common with 
another, no length of such possession can 
give him a title by the statute of limita- 
tions against his co-tenant, for the very 
obvious reason that his possession can- 
not be adverse to his co-tenant until 
an ouster is established. But where a 
person goes into possession of land un- 
der a deed from a third person which 
purports on its face to convey to him 
an absolute and exclusive title to the 
entire interest in the land, and such 
deed is spread upon the public records, 
this is notice to the world that he is 
claiming the entire and exclusive in- 
terest in the land, and his possession 
may be adverse to all the world from 
the time of its commencement. Sud- 
duth v. Sumeral, 61 S. C. 276, 39 S. E. 
534, 539, 85 Am. St. Rep. 883. See, also, 
Dickson v. Epps, 104 S. C. 381, 89 S. E. 
354. 

Even though the deed is defective. — 



Under this section an instruction that 
possession of a part of a tract of land 
under a claim made under an invalid 
deed would give possession of the whole, 
is correct. Kennedy v. Kennedy, 86 S. C. 
483, 68 S. E. 664. 

The words "as being a conveyance of 
the premises," used in this section show 
that the extent of the occupant's claim, 
founded on an instrument of writing is 
not dependent upon the validity of such 
instrument; otherwise there would have 
been no necessity for this section of the 
code. Kennedy v. Kennedy, 86 S. C. 483, 
68 S. E. 664, 669. To the same effect is 
Frady v. Ivester, 129 S. C. 536, 125 S. E. 
134, 137. 

But occupancy not under color of title 
is confined to portion actually occupied. 
— But where a man holds land not un- 
der a written instrument, not under a 
color of title, then his holding is con- 
fined to what he actually has in pos- 
session, what he has actually under 
use or cultivation, and a man may ac- 
quire title without any paper or decree 
of court or will or deed or plat of any 
kind, but he only acquires in that case 
such as he has actually brought under 
his control, possession, and actual oc- 
cupation. So where one holds land not 
under color of title, his possession is 
confined to such land as he has cleared 
up, or cultivated, in the usual manner, 
or improved, or which has been pro- 
tected by a substantial enclosure, as re- 
quired by § 379. Haithcock v. Haithcock, 
123 S. C. 61, 115 S. E. 727, 730; Lyles v. 
Fellers, 138 S. C. 31, 136 S. E. 13, 17, 
and the authorities cited. 

Occupancy for 10 years of one of two 
adjoining parcels of land included with- 
in the lines of a plat held as color of 
title, does not confer title by adverse 
possession against the owner of the 
other parcel. Massey v. Duren, 3 S. C. 34. 

Where the plaintiff and defendant 
each claim property under color of title, 
but do not claim from a common source, 
it is immaterial which of the paper 
titles bears the earlier date. Dickson v. 
Epps, 104 S. C. 381, 89 S. E. 354, 356, 
holding that a paper title beginning in 
1836 is of equal force and effect as the 
one under which the opposite party 
claimed, and beginning a century before. 

Adverse possession against persons un- 
der disability. — Of course, such adverse 
possession cannot avail him against one 
laboring under any legal disability — 
such, for example, as infancy — until his 
possession continues for the prescribed 
time after the removal of such disability. 
Sudduth v. Sumeral, 61 S. C. 276, 39 S. 
E. 534, 539, 85 Am. St. Rep. 883. This 
view is sustained by the case of Garrett 
v. Weinberg, 48 S. C. 28, 26 S. E. 3. 

See § 384 and the note thereto. 



Page 219 



Actions for the Recovery of Real Property 



§ 379 



Evidential facts of ownership of land. 

— The exercise of ownership of land 
upon which a party enters, and claims 
title thereto by virtue of this section, 
may be evidenced by such acts as (1) 
payment of taxes, (2) collection of rents, 

(3) making repairs and improvements, 

(4) advertising the land for sale under 
the description contained in the instru- 
ment under which entry was made, with 
the statement that the title was first 
class, and that such party would make a 
warranty deed to the purchaser. God- 
frey v. Burton Lumber Co., 88 S. C. 
132. 70 S. E. 396, 397. See, also, Carr v. 
Mouzon, 86 S. C. 461, 68 S. E. 661. 

Evidence that at the time a railroad 
company constructed a road, some of the 
trees were cut down and a right of 
way was cleared 50 feet from center of 
the track on each side, is not sufficient 
evidence to show an exclusive and no- 
torious adverse possession, where there 
is also testimony showing that at that 
time a great part of land was already 
cleared and that for many years prior 
to institution of action of trespass to 
try title to real estate, the railroad and 
predecessors in interest exercised no 
acts of ownership over any part of the 
right of way except that occupied by the 
railroad track, side ditches, cuts, and 
fills. Willard v. Southern Ry. Co., 158 
S. C. 522, 155 S. E. 833, 834. 

Method of overcoming presumption. — 
Where there has been an entry under 
color of title and an occupancy of the 
land for the statutory period, then the 
presumption created by this section can 
only be overcome by showing adverse 
occupancy and possession for 10 years 
before the action to recover the proper- 
ty was commenced. Dickson v. Epps, 



104 S. C. 381, 89 S. E. 354, 356. 

See the next foregoing section and the 
note thereto. 

The burden of proof of adverse pos- 
session is on him relying thereon. — Lyles 
v. Fellers, 138 S. C. 31, 136 S. E. 13, 17. 

Death does not toll statute. — See this 
catchline under § 374, analysis line II, 
treating the case of Frady v. Ivester, 129 
S. C. 536, 125 S. E. 134. 

Adverse possession cannot ordinarily 
be claimed against one under whom de- 
fendant entered into possession, but this 
does not apply where there has been an 
adverse holding for a sufficient length 
of time to presume a grant. Mitchell v. 
Allen, 81 S. C. 340, 341, 61 S. E. 1087, 
62 S. E. 399; McCutchen v. McCutchen, 
77 S. C. 129, 57 S. E. 678, 12 L. R. A., N. 
S., 1140n. 

Statute starts for devisees in posses- 
sion when action accrues in favor of 
creditor. — Devisee's possession of de- 
vised lands under will in order to be 
adverse can only have starting point 
where right of action accrues in favor of 
creditor. Brock v. Kirkpatrick, 69 S. C. 
231, 48 S. E. 72. 

See generally, as to adverse possession 
by son entering under permission of 
father, McCutchen v. McCutchen, 77 
S. C. 138, 57 S. E. 678, 12 L. R. A., N. S., 
1140n. 

As to adverse possession by agent 
against principal, Crawford v. Craw- 
ford, 77 S. C. 205, 57 S. E. 837. 

As to presumption of ouster from 
twenty years' exclusive possession by 
co-tenant, see catchline "Or to Rebut the 
Statutory Presumption" under § 385, 
wherein is treated the case of Powers v. 
Smith, 80 S. C. 110, 111, 61 S. E. 222. 



§ 379. Adverse possession under written instrument, etc. — For the pur- 
pose of constituting an adverse possession, by any person claiming a 
title founded upon a written instrument or a judgment or decree, land shall 
be deemed to have been possessed and occupied in the following cases: 

(1) Where it has been usually cultivated or improved. 

(2) Where it has been protected by a substantial enclosure. 

(3) Where, although not enclosed, it has been used for the supply of 
fuel or of fencing timber, for the purposes of husbandry, or the ordinary 
use of the occupant. 

(4) Where a known farm or a single lot has been partly improved, the 
portion of such farm or lot that may have been left not cleared or not en- 
closed, according to the usual course and custom of the adjoining country, 
shall be deemed to have been occupied for the same length of time as the 
part improved and cultivated. 

1932 Code, § 379; Civ. P. '22, § 322; Civ. P. '12, § 128; Civ. P. '02, § 103; 1870 (14) 
§ 106. 

Editor's note. — It is apparent that this nection with the general rules set out in 
section was intended to be read in con- the next foregoing section. The practi- 



§ 379 



Code of Civil Procedure 



Page 220 



tioner is therefore referred to that sec- 
tion and the note thereto. 

Section applies only where claim is 
under color of title. — This section ap- 
plies only where claim to land is made 
under color of title. And where there is 
no color of title, the claimant is confined 
to that portion of the land actually oc- 
cupied, and protected by a substantial 
inclosure or usually cultivated and im- 
proved. Walker v. Oswald, 156 S. C. 424, 
153 S. E. 286, citing Witcover v. Grant, 
93 S. C. 190, 76 S. E. 274, 275. 

Use in designated manner gives rise to 
constructive occupancy. — If a party 
claims land under color of title and also 
shows that such- land has been used for 
the purposes mentioned in subd. 3 of this 
section (or where the case falls within 
either of the subdivisions), then such 
party is not limited to the land actually 
occupied, and an instruction to the con- 
trary is erroneous. Battle v. De Vane, 
140 S. C. 305, 138 S. E. 821, 825. 

In Haithcock v. Haithcock, 123 S. C. 
61, 115 S. E. 727, 731, the Supreme Court 
approved an instruction that where a 
known farm or a single lot, claim to 
which is made under color of title, has 



been partly improved, the portion left 
not cleared or not inclosed, according to 
the usual course and custom of the ad- 
joining county is deemed to have been 
occupied for the same length of time 
as the part improved and cultivated. 

Occupancy need not be continuous in 
one particular place. — In view of this 
and the next foregoing section, it is not 
necessary that possession, and occupancy 
of a lot be continuous in one particular 
place for the statutory period. Mahoney 
v. Southern Ry., 82 S. C. 215, 64 S. E. 
228. 

Supply of fuel and timber. — Under 
this section, possession is adverse and 
continuous where land, though not cul- 
tivated or inclosed, is continuously used 
for the supply of fuel and timber, the 
ordinary use for which the land is fitted. 
Bardin v. Commercial Ins. & Trust Co., 
82 S. C. 358, 64 S. E. 165. 

See generally, Carr v. Mouzon, 86 S. C. 
461, 68 S. E. 661. 

Applied in Fore v. Berry, 94 S. C. 71, 
78 S. E. 706, Ann. Cas. 1915 A, 955. 

Cited in Sudduth v. Sumeral, 61 S. C. 
276, 39 S. E. 534, 85 Am. St. Rep. 883. 



§ 380 Premises actually occupied held adversely. — Where it shall appear 
that there has been an actual continued occupation of premises, under 
a claim of title, exclusive of any other right, but not founded upon a 
written instrument or a judgment or decree, the premises so actually oc- 
cupied, and no other, shall be deemed to have been held adversely. 

1932 Code, § 380; Civ. P. '22, § 323; Civ. P. '12, § 129; Civ. P. '02, § 104; 1870 (14) 
§ 107. 



See the two foregoing sections and 
their respective notes. 

The following is a portion of an ap- 
proved instruction, pertaining to this 
section: "If he claims without claiming 
under color of title, then he can only 
hold such part of the land as has been 
protected by a substantial enclosure, or 
such part of the land as has been usually 
cultivated or improved, in the usual way 
that such lands of that particular char- 



acter are used in the community in 
which that land may lie." Haithcock v. 
Haithcock, 123 S. C. 61, 115 S. E. 727, 
731. 

See generally, Carr v. Mouzon, 86 S. C. 
461, 68 S. E. 661. 

Cited in Sudduth v. Sumeral, 61 S. C. 
276, 39 S. E. 534, 536, 85 Am. St. Rep. 
883; Witcover v. Grant, 93 S. C. 190, 76 
S. E. 274, 275. 



§ 381. Adverse possession under claim of title not written. — For the pur- 
pose of constituting an adverse possession by a person claiming title not 
founded upon a written instrument or a judgment or decree, land shall be 
deemed to have been possessed in the following cases only: 

(1) Where it has been protected by a substantial enclosure. 

(2) Where it has been usually cultivated or improved. 

1932 Code, § 381; Civ. P. '22, § 324; Civ. P. '12, § 130; Civ. P. '02, § 105; 1870 (14) 
§ 108. 

See §§ 378, 379 and the notes there title need not show inclosure and culti- 

placed. vation. Farmers' & Merchants' Bank v. 

This section does not apply where Rivers, 107 S. C. 204, 92 S. E. 753. 

title is founded on a written instrument. See generally. Carr v. Mouzon, 86 S. C. 

and therefore, the party so claiming 461, 68 S. E. 661. 



Page 221 Actions for the Recovery of Real Property § 384 

Cited in Sudduth v. Sumeral, 61 S. C. C. 190, 76 S. E. 274, 275; Atlantic Coast 

276, 39 S. E. 534, 8t> Am. St. Rep. 883; Line R. Co. v. Baker, 143 S. C. 445, 141 

Haithcock v. Haithcock, 123 S. C. 61, 115 S. E. 688, 697. 
S. E. 727, 731; Witcover v. Grant, 93 S. 

§ 382. Relation of landlord and tenant, as affecting adverse possession. 

— Whenever the relation of landlord and tenant shall have existed between 
any persons, the possession of the tenant shall be deemed the possession of 
the landlord until the expiration of ten years from the termination of the 
tenancy; or, where there has been no written lease, until the expiration of 
ten years from the time of refusal to pay rent, nothwithstanding that 
such tenant may have acquired another title, or may have claimed to hold 
adversely to his landlord. But such presumptions shall not be made after 
the periods herein limited. 

1932 Code, § 382; Civ. P. '22, § 325; Civ. P. '12, § 131; Civ. P. '02, § 106; 1870 (14) 
§ 109; 1873 (15) 496. 

§ 383. Descent cast, effect of. — The right of a person to the possession of 
any real property shall not be impaired or affected by a descent being 
cast in consequence of the death of a person in possession of such property. 
1932 Code, § 383; Civ. P. '22, § 326; Civ. P. '12, § 132; Civ. P. '02, § 107; 1870 (14) 
§ 110. 

5 384. Persons under disability. — If a person entitled to commence any 
action for the recovery of real property, or make an entry or defense 
founded on the title to real property, or to rents or services out of the same, 
be, at the time such title shall first descend or accrue, either: 

(1) Within the age of twenty-one years; or, 

(2) Insane; or, 

(3) Imprisoned on a criminal or civil charge, or in execution upon con- 
viction of a criminal offense for a term less than for life — 

The time during which such disability shall continue, shall not be deemed 
any portion of the time in this chapter limited for the commencement of 
such action or the making of such entry or defense; but such action may 
be commenced, or entry or defense made, after the period of ten years, and 
within ten years after the disability shall cease, or after the death of the 
person entitled who shall die under such disability; but such action shall 
not be commenced, or entry or defense made, after that period. 

1932 Code, § 384; Civ. P. '22, § 327; Civ. P. '12, § 133; Civ. P. '02, § 108; 1870 (14) 
§ 111; 1873 (15) 496. 

Cross reference. — As to the effect of practitioner is referred to Cheatham v. 

minority of one co-tenant, see the catch- Evans, 160 Fed. 802, and, also, Glover v. 

line "And to be 'adverse' it must evi- Floyd, 76 S. C. 292, 57 S. E. 25. 

dence ownership of land" under § 385 Disability must exist when title first 

wherein is treated the case of Garrett v. descends or accrues. — To prevent or ar- 

Weinberg, 48 S. C. 28, 26 S. E. 3, 13. rest the running of the statute, the per- 

Editor's note. — As this section stood son entitled to commence an action to 

in 1870 it appears to have provided also recover land must show a disability — as 

for the disability of coverture. See infancy — "at the time such title shall 

Stokes v. Murray, 99 S. C. 221, 83 S. E. first descend or accrue." Satcher v. 

33. As the section then stood, provision Grice, 53 S. C. 126, 31 S. E. 3, 4. 

was also made whereby a party had 20 Section protects party only for 10 

years within which to bring his suit, years after disability ceases. — This sec- 

This was changed by an act passed in tion does not protect a person from the 

1873. For a discussion of the changes operation of the statute of limitations 

which this section has undergone, the after the expiration of the 10 year period 



§ 384 



Code of Civil Procedure 



Page 222 



following the removal of disability. Mac- 
caw v. Crawley, 59 S. C. 342, 37 S. E. 
934, 937. 

Instruction as to commencement of 
period. — Under this section it is error to 
charge that limitations will commence 
to run against a minor remainderman 
from the time of the alienation of the 
property by the life tenant. Rice v. Bam- 
berg, 59 S. C. 498, 38 S. E. 209. As a 
further reason for its ruling the court 
held that limitations do not commence 
to run against a remainderman until the 
death of the life tenant. 

Arrest of statute. — Under this section, 
the fact that plaintiff is a minor when 
the action is commenced does not arrest 
the statute, where it has already com- 
menced to run against the one under 
whom the minor claims. Satcher v. Grice, 
53 S. C. 126, 31 S. E. 3. 

Effect of changes in statutes of limi- 
tations. — It may be mentioned at this 
place that according to the decisions or 
our courts, when a right of action or 
cause of action has accrued, the law is 
fixed, and that no change of the statutes 



of limitation is wrought by any legisla- 
tion afterwards fixing a different period. 
See Glover v. Floyd, 76 S. C. 292, 57 S. 
E. 25, 27, and the authorities there cited. 
In other words, an amendment chang- 
ing a limitation does not affect a cause 
of action which has already accrued. Id. 

Infants. — Proceeding in partition suit 
by infant defendants on attaining their 
majority to set aside sale decreed there- 
in which was not commenced within six 
years after cause of action accrued or 
within one year after disability of 
youngest defendant was removed, is 
barred by limitations as against conten- 
tion that proceeding to set aside sale was 
not an "action" within statute extend- 
ing time for commencement of action by 
an infant after attaining his majority by 
one year only. Lyerly v. Yeadon, 183 
S. C. 256, 190 S. E. 737. 

See generally, as to minority, Brucke 
v. Hubbard, 74 S. C. 144, 54 S. E. 249; 
Cheatham v. Evans, 160 F. 802; Cheat- 
ham v. Edgefield Mfg. Co., 131 F. 118. 

Cited but not construed in Duren v. 
Kee, 26 S. C. 219, 2 S. E. 4, 8. 



§ 385. After forty years, no action whatever allowed. — No action shall 
be commenced in any case for the recovery of real property, or for any in- 
terest therein, against a person in possession under claim of title by virtue of 
a written instrument, unless the person claiming, his ancestor or grantor, 
was actually in the possession of the same or a part thereof, within forty 
years from the commencement of such action. And the possession of a 
defendant, sole or connected, pursuant to the provisions of this section, 
shall be deemed valid against the world after the lapse of said period. 

1932 Code, § 385; Civ. P. '22, § 328; Civ. P. '12, § 134; Civ. P. '02, § 109; 1873 (15) 
496. 



Editor's note. — This section does not 
seem to have been enacted until after 
1873, as it does not appear in the revised 
statutes of 1873. See Sutton v. Clark, 59 
S. C. 440, 38 S. E. 150, 155, 82 Am. St. 
Rep. 848. 

Scope of section. — This section may be 
divided into two parts. The first relates 
to the commencement of the action, and 
shows under what circumstances the 
plaintiff will be barred of his right to 
recover the land. The second has refer- 
ence to the rights of the defendant, and 
practically confers upon him a title in 
fee after he has held possession of the 
land under the circumstances and for the 
length of time therein mentioned. Sutton 
v. Clark, 59 S. C. 440, 38 S. E. 150, 155, 
82 Am. St. Rep. 848. 

The length of time necessary to bar 
the plaintiff's right to recovery and to 
confer title upon the defendant is the 
same in each case. Sutton v. Clark, 59 S. 
C. 440, 38 S. E. 150, 156, 82 Am. St. Rep. 
848. 

Possession for 40 years after accrual 



of action is necessary. — This section does 
not apply unless the defendant has been 
in possession 40 years after the accrual 
of the cause of action. Rowell v. Hyatt, 
108 S. C. 300, 94 S. E. 113, holding that 
the cause of action of remaindermen to 
recover possession from those claiming 
under an execution sale of the life es- 
tate does not accrue until the death of 
the life tenant. Accord, Bolt et al. v. 
Sullivan, 173 S. C. 24, 174 S. E. 491. 

Tacking is permitted. — This section 
permits the tacking of the time a party 
has been in possession, with the time 
during which those under whom he 
claims held possession, so as to complete 
the statutory terms of adverse posses- 
sion; and an instruction to. this effect is 
sound. Sutton v. Clark, 59 ''S. C. 440, 38 
S. E. 150, 156, 82 Am. St. Rep. 848, cited 
in Mitchell v. Cleveland, 76 S. C. 432, 57 
S. E. 33, 38. 

See § 383 and the note thereto. 

Inapplicable to claim already barred. 
— Where the right of a minor heir to 
real property accrued in 1880, and the 



Page 223 



Actions Other Than for Recovery of Realty 



§ 387 



minor became of age in 1885, but did not 
assert her claim to the property until 
1899, this section had no application, 
since sufficient time had elapsed to bar 
her claim after the disability of infancy 
was removed. Maccaw v. Crawley, 59 S. 
C. 342, 37 S. E. 934. 

See the next foregoing section and the 
note thereto. 

Objection should be by answer. — Ob- 
jection that an action was not instituted 
within the time presented by this section 
should be taken by answer. Sutton v. 
Clark, 59 S. C. 440, 38 S. E. 150, 156, 82 
Am. St. Rep. 848. 

This mode of making objections in 
cases involving the statute of limitations 
is expressly provided for in § 356. See 
the note to that section. — Ed. note. 

A possession which "shall be deemed 
valid against the world" is tantamount 
to the fee, otherwise the last sentence in 
said section would be meaningless. Sut- 
ton v. Clark, 59 S. C. 440, 38 S. E. 150, 
156, 82 Am. St. Rep. 848. 

Proof of title by virtue of section. — 
In order to defeat the plaintiffs right 



to recovery, the defendant is compelled 
to prove every fact that would have to 
be established to show that he had be- 
come the owner of the title by virtue of 
this section. Sutton v. Clark, 59 S. C. 440, 
38 S. E. 150, 156, 82 Am. St. Rep. 848. 

Interest of parties in land bought 55 
years ago with mother's money, barred 
by ten-year statute, twenty years pre- 
sumption of a grant, and by forty-year 
statute. First Carolinas Joint Stock Land 
Bank v. Hudgens, 171 S. C. 18, 171 S. E. 
449. 

Also, under will devising property to 
testator's daughter and "lawful heirs 
of her body," child and grandchildren of 
testator's daughter whose ancestors had 
not been in possession for more than 50 
years could not recover property from 
successors of daughter's grantees, since 
devise either created fee conditional, or, 
if quoted words were words of purchase, 
created tenancy in testator's daughter 
and daughter's children at time will took 
effect. McQuage et al v. Calhoun et al., 
178 S. C. 341, 183 S. E. 164. 



CHAPTER 13 



Actions Other Than for Recovery of Realty 



386. Limitation prescribed. 

387. Twenty years. 

388. Six years. 

389. Three years. 

390. Two years. 

391. One year. 



392. Action upon open account. 

393. Action for penalties. 

394. Action for other relief. 

395. Contractual limitations. 

396. Actions by State. 



§ 386. Limitation prescribed. — The periods prescribed in section 356 for 
the commencement of actions other than for the recovery of real property 
shall be as follows: 

1932 Code, § 386; Civ. P. '22, § 329; Civ. P. '12, § 135; Civ. P. '02, § 110; 1870 (14) 
5 112. 



5 387. Twenty years. — Within twenty years: 

(1) An action upon a judgment or decree of any court of the United 
States, or any State or territory within the United States. 

(2) An action upon a bond, or other contract in writing, secured by a 

mortgage of real property; an action upon a sealed instrument other than 

a sealed note and personal bond for the payment of money only, whereof 

the period of limitation shall be the same as prescribed in section 388. 

1932 Code, § 387; Civ. P. '22, § 330; Civ. P. '12, § 136; Civ. P. '02, § 111; 1870 (14) 
J 113; 1880 (17) 415. 

See notes to § 388 and to § 8864. involve the issues and matters which 

Requisites of action "on the judgment" were adjudicated by such decree or 

or "decree." — In order for an action to judgment. See Du Pont v. Charleston 

be an action "on the decree," or "on the Bridge Co., 65 S. C. 524, 44 S. E. 86, 90. 

judgment" of a court, such action must A suit by an heir to enforce the pay- 



§ 387 



Code of Civil Procedure 



Page 224 



ment of an assessment which is in the 
form of a judgment of the probate court 
is "upon a judgment" within the mean- 
ing of this section and is not barred in 
less than 20 years. McKibben v. Salinas, 
41 S. C. 105, 19 S. E. 302. 

Section 8864 of the Civil Code pre- 
scribes, among other things, the length 
of time within which a judgment is to be 
considered a lien on the debtor's prop- 
erty. Provision is also made whereby 
the judgment may be revived after its 
active energy has expired. The period 
fixed by that section is now 20 years. It 
formerly was 10 years. The instant sec- 
tion, at the same time, provided a 20 
year limitation within which to institute 
suit "upon a judgment." It was, there- 
fore, then possible to enforce a judg- 
ment even though it had, by the lapse of 
time, lost its effectiveness as a lien and 
even though it was too late to revive the 
judgment. It was merely done by operat- 
ing under the instant section, by way of 
a suit "upon the judgment." This was 
done in at least one case. Rowland v. 
Shockley, 43 S. C. 246, 21 S. E. 21. This 
is of course no longer possible since 
the two sections now provide the same 
period of limitation. — Ed. note. 

There is a presumption of payment of 
the judgment after the lapse of 20 years. 
—See Brantley v. Bittle, 72 S. C. 179, 51 
S. E. 561. 

Unless judgment is revived by subse- 
quent decree. — A decree ordering the 
sale of lands, and the application of pro- 
ceeds to an existing judgment, revives 
such judgment. Anderson v. Baughman, 
69 S. C. 38, 48 S. E. 38. 

This section applies to the foreclosure 
of a mortgage. — Jennings v. Peay, 51 S. 
C. 327, 28 S. E. 949. 

An instrument with all the requisites 
of a mortgage, except a seal, is not a 
mortgage within the meaning of this sec- 
tion. Arthur v. Screven, 39 S. C. 77, 17 
S. E. 640, 643. 

A mortgage which is invalid as a legal 
mortgage through insufficient attesta- 
tion, but enforceable as an equitable 
mortgage is more than "a sealed note or 
personal bond for the payment of money 
only." It is a sealed instrument import- 
ing an obligation to pay money and a 
lien as between the obligor and obligee 
upon the land to secure payment. This 
being so, in a controversy between the 
obligor and obligee, the action falls un- 
der subd. 2 of this section. Stelts v. Mar- 
tin, 90 S. C. 14, 72 S. E. 550, 551. 

In Lyles v. Lyles, 71 S. C. 391, 51 S. E. 
113, the court had under consideration § 
8864 of the Civil Code, which among 
other things provides that the lien of a 
mortgage shall be ineffective after the 
lapse of 20 years from its maturity. The 
court, in order to leave the instant sec- 
tion in full force and effect, construed 



that section so that under it the hen of 
a mortgage is good for 20 years after 
the note secured thereby becomes due, 
though the mortgage itself is more than 
20 years old from the date of its execu- 
tion. 

In the dissenting opinion in Lyles v. 
Lyles, 71 S. C. 391, 51 S. E. 113, 117, it is 
said that a suit may be brought on a 
mortgage at any time within 20 years 
after its maturity, under this section, to 
recover the debt evidenced by it, but 
after 20 years from the date of the mort- 
gage the debt cannot be enforced by 
foreclosure of the lien, unless kept alive 
in the manner provided in § 8864 of the 
Civil Code, because under that section 
the lien would then be gone. 

Except where mortgage is cancelled 
and only bond for payment of money is 
left. — This section does not apply to a 
case where the legal holder of a bond 
secured by a real estate mortgage can- 
cels and satisfies the mortgage of record, 
and leaves nothing but the bond, which 
is one for the payment of money only. 
The limitation in such case is expressly 
provided for in the next succeeding sec- 
tion. Gable v. Rauch, 50 S. C. 95, 27 S. 
E. 555, 560. 

A note secured by a mortgage may be 
barred whereas the mortgage itself may 
not be barred. — Nichols v. Briggs, 18 S. 
C. 473, 484. 

And a mortgage may be barred though 
the note which it secures need not neces- 
sarily be barred. — McSween v. Wind- 
ham, 104 S. C. 508, 89 S. E. 500, 502. 

It is true that in Cleveland v. Cohrs, 
10 S. C. 224, the court recognized the 
theory that the mortgage is a mere se- 
curity for the payment of the debt which 
it secures, and therefore follows the debt 
as a shadow follows the substance (a 
theory that is recognized in the courts of 
many states), but in Nichols v. Briggs, 
supra, it is said that the ruling that the 
note may be barred although the mort- 
gage need not be barred, is not incon- 
sistent with that theory. — Ed. note. 

Applies to principals and sureties. — 
Subdivision (2) of this section applies to 
all of the obligors on bonds and instru- 
ments falling within its purview, princi- 
pals as well as the sureties. Strain v. 
Babb, 30 S. C. 342, 9 S. E. 271, 273, 14 
Am. St. Rep. 905. 

Under subd. 2 of this section an action 
for damages for breach of administra- 
tor's bond may be maintained against 
his surety any time within 20 years af- 
ter breach, though bond is more than 20 
years old. Beatty v. National Surety Co., 
132 S. C. 45, 128 S. E. 40. 

Application to bonds. — A bond may be 
such that the breach thereof sounds in 
money damages and the penalty may 
be for a specific amount, and yet the 
bond may not be for the payment of 



Page 225 Actions Other Than for Recovery of Realty 



§ 388 



money in the sense that that term is used 
in this section. Strain v. Babb, 30 S. C. 
342, 9 S. E. 271, 273, 14 Am. St. Rep. 
905. 

The Supreme Court of our state has 
said that they cannot conceive why the 
General Assembly made the distinction 
between bonds that are for the payment 
of money only, and those that are not; 
but ita lex scripta est, and there is no al- 
ternative but to enforce the distinction 
in proper cases. Strain v. Babb, 30 S. C. 
342, 9 S. E. 271, 273, 14 Am. St. Rep. 905. 

A bond which is in the nature of a cov- 
enant — a contract under seal — by which 
the obligors thereto bind themselves un- 
der a specified penalty to answer for the 
neglect of duty, if any, on the part of the 
clerk of the court to the extent of such 
injury as any party might sustain by 
such neglect, not to exceed the penalty, 
is a bond other than for the payment of 
money, in the sense of this section. Strain 
v. Babb, 30 S. C. 342, 9 S. E. 271, 273, 14 
Am. St. Rep. 905. 

Applies to action on decrees for par- 
tition. — Simms v. Kearse, 42 S. C. 43, 20 
S. E. 19; McKibben v. Salinas, 41 S. C. 
105, 19 S. E. 302. 

Effect of new promise or acknowledg- 
ment. — The debtor may acknowledge the 
existence of a debt and thus infuse new 
life into the instrument evidencing the 



debt, and when this is done the 20 year 
period must begin from that time. Mc- 
Sween v. Windham, 124 S. C. 508, 89 S. 
E. 500, 502. 

As to necessity that acknowledgment 
or new promise be in writing, see § 368 
and the note thereto. 

Action on bond secured by mortgage 
against distributees will lie, nine years 
after it became due, and though no claim 
was filed with administrator during the 
administration year. Columbia Theologi- 
cal Seminary v. Arnette et al., 168 S. C. 
272, 167 S. E. 465. 

Where endorsers indorsed note with 
knowledge that it was secured by real 
estate mortgage executed by maker, 20 
year statute applies, and not 6 year stat- 
ute, notwithstanding endorsers were not 
parties to the mortgage. Scovill et al v. 
Johnson et al., 190 S. C. 457, 3 S. E. (2d) 
543. 

Where there is doubt as to which of 
two statutes of limitations applies, must 
be resolved in favor of the longer period, 
limitation statutes not being favored by 
the courts. Ibid. 

See generally. Glover v. Floyd, 76 S. C. 
292, 57 S. E. 25; Montague v. Priester, 82 
S. C. 492, 64 S. E. 393; Coleman v. Cole- 
man, 74 S. C. 567, 54 S. E. 758; McQuage 
et al. v. Calhoun, et al., 178 S. C. 341, 183 
S. E. 164. 



§ 388. Six years. — Within six years; 

(1) An action upon a contract, obligation, or liability, express or implied, 
excepting those provided for in section 387. 

(2) An action upon a liability created by statute, other than a penalty or 
forfeiture. 

(3) An action for trespass upon or damage to real property. 

(4) An action for taking, detaining, or injuring any goods or chattels; 
including action for the specific recovery of personal property. 

(5) An action for criminal conversation, or for any other injury to the 
person or rights of another, not arising on contract, and not hereinafter 
enumerated. 

(6) Any action for relief on the ground of fraud, in cases which, hereto- 
fore, were solely cognizable by the court of chancery, the cause of action in 
such case not to be deemed to have accrued until the discovery by the ag- 
grieved party of the facts constituting the fraud. 

(7) Actions may be brought in any of the courts of this State properly 
having jurisdiction thereof on any policies of insurance, either fire or life, 
whereby any person or property, resident or situate in this State, may be 
or may have been insured, or for or on account of any loss arising there- 
under, within six years from the date of such loss, or from the accrual 
of the cause of action under said policy, any clause or condition in the said 
policies or limitations therein contained to the contrary notwithstanding. 

1932 Code, § 388; Civ. P. '22 ,§ 331; Civ. P. '12, § 137; Civ. P. '02, § 112; 1870 (14) 
£ 114; 1891 (20) 1042. 



§ 388 



Code of Civil Procedure 



Page 226 



I. General Considerations. 
II. Subdivision (1). 

III. Subdivision (2). 

IV. Subdivision (4). 
V. Subdivision (6). 

VI. Subdivision (7). 

I. GENERAL CONSIDERATIONS. 
Section confers immunity from suit 

only. — This section confers no rights ex- 
cept simply that of immunity from suit, 
and therefore, until some action is 
brought against one who seeks to avail 
himself of the benefits of the statute, 
there is no room for its application. 
Amaker v. New, 33 S. C. 28, 11 S. E. 386, 
387, 8 L. R. A. 687. 

The statute of limitations is inert and 
inoperative until a right of action arises. 
Suber v. Chandler, 18 S. C. 526. 

And does not destroy cause of action. 
— It must be remembered that the stat- 
ute of limitations does not even purport 
to destroy or extinguish a cause of ac- 
tion, but simply to close the doors of the 
courts to a suitor who undertakes to 
bring his suit upon such cause of action 
after the lapse of the prescribed period. 
Jackson v. Plyler, 38 S. C. 496, 17 S. E. 
255, 257, 37 Am. St. Rep. 782. 

It has been held in Wilson v. Kelly, 16 
S. C. 216, that while a holder of a note 
may have lost his right of action for the 
breach of the contract evidenced by the 
note, by reason of the lapse of the pre- 
scribed time, yet, if he can obtain pay- 
ment in any other way than by resort 
to an action on such contract, he has the 
right so to do. See also, Amaker v. New, 
33 S. C. 28, 11 S. E. 386, 8 L. R. A. 687. 

The plea of the statute, as it is called 
(improperly, as I think, for such a plea 
must be directed to the cause of action 
set forth in the complaint), is not di- 
rected to the plaintiff's cause of action, 
but is interposed as a protection against 
an attack made by the plaintiff upon the 
defense set up by defendants. Amaker v. 
New, 33 S. C. 28, 11 S. E. 386, 387, 8 L. 
R. A. 687. 

This section applies only to actions at 
law and has no applications to suits in 
equity. Parrott v. Dickson, 151 S. C. 114, 
148 S. E. 704, 706, 63 A. L. R. 965; Fan. 
ning v. Bogacki, HI S. C. 376, 98 S. E. 
137; Bell, Probate Judge v. Mackey et al. 
191 S. C. 105, 3 S. E. (2d) 816. 

This section applies to and governs the 
limitations as to tort actions. Newman 
v. Lemmon, 149 S. C. 417, 147 S. E. 439, 
440. 

It is important to remember that § 418 
prohibits suits against executors for the 
recovery of debts due by testator until 
12 months after testator's death. It is 
consistently held that the effect of § 418 
is to add 12 months to the period of lim- 
itation fixed by the general statute of 
limitation applicable to the case. See 



Gaston v. Gaston, 80 S. C. 157, 61 S. E. 
393; Cleveland v. Mills, 9 S. C. 430; 
Moore v. Smith, 29 S. C. 254, 7 S. E. 485. 
But the period of limitation is enlarged 
only where the action is for the recovery 
of a "debt." And a tort claim is not a 
"debt" within the meaning of § 418. 
Newman v. Lemmon, 149 S. C. 417, 147 S. 
E. 439. Therefore, a tort action must be 
instituted within the 6 year period pre- 
scribed in this section regardless of the 
death of the tortfeasor. Id. 

As to what are "debts" within the 
meaning of § 418, the practitioner is re- 
ferred to the note to that section. 

Commencement of statute against bid- 
der at judicial sale. — Before this sec- 
tion could run against right to compel 
purchaser of land sold under order of 
court in partition action even if the 
statute of limitations were applicable 
to such a case, the purchaser should 
notify clerk of court of his refusal to 
comply with terms of his bid. Parrott v. 
Dickson, 151 S. C. 114, 148 S. E. 704. 

Amendment which introduces a new 
or different cause of action does not re- 
late back to beginning of action so as to 
stop running of statute, even though 
arising out of same transaction. Coral 
Gables v. Palmetto Brick Co., 183 S. C. 
478, 191 S. E. 337. For amendment held 
not to change cause of action, see Wilson 
v. Gregory, 189 S. C. 62, 200 S. E. 358. 

Applied as to note executed prior to 
statute, but maturing after the passage 
of the section. Stoddard v. Owings, 42 
S. C. 88, 20 S. E. 25. See, also, Jennings 
v. Peay, 51 S. C. 327, 28 S. E. 949; as to 
accrual of cause of action to indorser on 
note. McCrady v. Jones, 44 S. C. 406, 22 
S. E. 414. 

Cited in Charleston, etc., Ry. Co. v. 
Reynolds, 69 S. C. 481, 48 S. E. 476, 488; 
Williams v. Halford, 73 S. C. 119, 53 S. 
E. 88, 90; Carrol v. Green, 92 U. S. 509, 
23 L. Ed. 738. 

II. SUBDIVISION (1). 

Editor's note. — In 1870 this section pro- 
vided that an action on a sealed note 
could be commenced within "20 years 
after the cause of action shall have ac- 
crued." By act in 1873 the period within 
which such actions could be brought was 
reduced to six years. See Stoddard v. 
Owings, 42 S. C. 88, 20 S. E. 25, applying 
the six year period to a note which had 
been executed before the six year stat- 
ute had been adopted, but which ma- 
tured after its adoption. 

Agreement changing period of limita- 
tion is void. — In view of subd. (1) of 
this section and § 395 providing that no 
provision in any contract whereby it is 
agreed that either party shall be barred 
from bringing suit if not brought within 
a period less than the time prescribed 
by the statute of limitations shall be 
valid, suit may be brought against a 



Page 227 



Actions Other Than for Recovery of Realty 



§ 388 



surety, after the expiration of the six 
months' period within which the bond, 
upon which action is brought, required 
it should be brought; the action falling 
within the six-year statute provided for 
in this section. State Agricultural & 
Mechanical Soc. v. Taylor, 104 S. C. 167, 
88 S. E. 372. As to clause in contract not 
in conformity to statute of limitations 
declared void, see § 395 and the note 
thereto. 

Part payment gives now life to agree- 
ment and constitutes implied "contracts." 
■ — An action based upon a note which 
after becoming barred by limitations, 
was given new life by part payment, is 
an action upon a "contract" which is 
"implied" from such payment, within 
the meaning of sub'd. (1) of this sec- 
tion and is barred within six years. Park 
v. Brooks, 38 S. C. 300, 17 S. E. 22, 24. 

As to new promises and acknowledg- 
ment taking case from operation of stat- 
ute of limitation, see § 368 and the note 
thereto. As to necessity of instituting suit 
on original cause of action, and the part 
payment as merely evidence in such ac- 
tion, see § 370 and the note thereto. 

But part payments do not toll statute 
as to indorsers. — Under subd. (1) of this 
section payments before or after ma- 
turity of a note by the maker do not toll 
the statute as to the indorsers. Butts v. 
Georgetown Mut, etc., Co., 142 S. C. 353, 
140 S. E. 700; Scoville et al. v. Johnson 
et al., 190 S. C. 457, 3 S. E. (2d) 543, dis- 
approving statement to contrary in 
Blackwood v. Spartanburg Commandery 
et al., 185 S. C. 56, 193 S. E. 195. 

Payments to preacher were properly 
credited on back salary, as respects 
whether balance sued for was barred. 
Brooks v. Central Baptist Church, 185 S. 
C. 200, 193 S. E. 326. 

Debtor has right to direct application 
of payment to any one of his debts, but 
should he give no direction, creditor may 
apply payment in such manner as pleases 
him, as regards running of statute of 
limitations. Johnson v. Broome, 175 S. C. 
385, 179 S. E. 315. 

Under equitable doctrine of retainer, 
note of legatee and devisee to intestate, 
barred by statute of limitations, could be 
set off against interest in personalty but 
not in realty. McNamara v. Ayers, 191 
S. C. 228, 196 S. C. 545. 

But 20-year presumption of payment 
statute will prevent operation of equita- 
ble doctrine of retainer, unless taken out 
of statute by part payment or consent in 
writing. Ibid. 

Provision in note that indorsers waived 
any benefit which might accrue to them 
because of "any extension" of time 
granted to maker, does not contemplate 
enlarging the statute of limitations by 
the granting of many extensions over a 
period of sixteen years. Tuten v. Bowen 



et al., 173 S. C. 256, 175 S. E. 510. 

Where there is prior mortgage on land 
subsequently conveyed under general 
warranty deed, there is no breach of 
warranty until foreclosure suit is com- 
menced, hence statute of limitations 
does not commence to run until right to 
possession has been destroyed through 
foreclosure sale. Morris v. Lain, 176 S. C. 
310, 180 S. E. 206. 

A trustee's relinquishment of bene- 
ficiary's business and turning over to 
her of her bank book and paid checks 
was a positive act manifesting a clear 
intention to terminate his trust, which 
started limitations to run on any claim 
against him. Nesbitt v. Clark, 187 S. C. 
365, 197 S.E. 382. 

Application on note of proceeds of sale 
of collateral by creditor, will not toll the 
statute, since payment is not voluntary 
on part of debtor. Zaks v. Elliott et al. 
(Krupnick v. Peoples State Bank), 106 
Fed. (2d) 425 (reversing 25 F. S. 857). 

Provision in note by which maker 
promised to pay deficiency after sale of 
collateral could not operate as promise to 
pay made at time deficiency was deter- 
mined, so as to toll the statute of limi- 
tations. Ibid. 

Payment by one joint obligor does not 
deprive the other of the statute of limi- 
tations. Ibid. 

Applicable to bond after cancellation 
of mortgage securing payment thereof. 
— This section applies to the case where 
the legal title holder of a bond secured 
by a mortgage cancels and satisfies the 
mortgage of record and leaves nothing 
but the bond which is one for the pay- 
ment of money only, and an action there- 
on is barred within 6 years. Newell v. 
Neal, 50 S. C. 68, 27, S. E. 560. See also, 
Gable v. Rauch, 50 S. C. 95, 27 S. E. 555, 
560, treated under the next foregoing 
section. 

Action founded on an agreement in 
compromise settlement of note is within 
section. McMakin v. Gowan, 18 S. C. 502. 

Section applies to counterclaims. — Un- 
der subd. (1) of this section a counter- 
claim for the conversion of property, 
where the tort is waived, and a recovery 
is sought on an implied contract, which 
shows that the cause of action had ac- 
crued more than six years prior to the 
institution of the action, is barred. Len- 
hardt v. French, 57 S. C. 493, 35 S. E. 
761. 

Collusive assignment to evade statute. 
— If a nonresident corporation, as payee 
of a note, cannot sue thereon in this 
state, by reason of the fact that such 
note is barred by the statute of limita- 
tions where it was executed, then a resi- 
dent trustee to whom the note was as- 
signed for the purposes of collection, 
cannot sue. Hodges v. Lake Summit Co., 
155 S. C. 436, 152 S. E. 658. 



§ 388 



Code of Civil Procedure 



Page 228 



As to necessity that suit be instituted 
by real party in interest, see §§ 391, 397, 
399 and the notes there placed. 

Action by county treasurer against 
county for tax execution fees collected 
and paid into county treasury was an 
"action upon an obligation or liability, 
express or implied," subject to six-year 
limitation rather than 20-year limita- 
tion. Gillespie v. Pickens County, 197 S. 
C. 217, 14 S. E. (2d) 900. 

III. SUBDIVISION (2). 

A municipal tax is a liability created 
by statute and falls within subd. 2 of 
this section. Milster v. City of Spartan- 
burg, 68 S. C. 26, 46 S. E. 539, 542. 

Under statute authorizing highway de- 
partment to construct a bridge and bill 
the railroad for part of the cost, cause 
of action arose when department com- 
pleted the bridge, knowing that the 
railroad denied liability, and statute of 
limitations commenced then and not a 
year later, when department sent a bill 
for the cost. State ex. rel. State Highway 
Department v. Piedmont & N. Ry. Co., 
186 S. C. 49, 194 S. E. 631. 

IV. SUBDIVISION (3). 
Where lower riparian owner sued city 

for pollution of stream, which com- 
menced more than six years previously, 
he was not barred by the statute of lim- 
itations, for it was a continuing nuisance, 
and he may recover for the last six 
years. Conestee Mills v. City of Green- 
ville, 160 S. C. 10, 158 S. E. 113. 

V. SUBDIVISION (4). 

This subdivision seems to have been 
applied in an action to recover houses on 
land that was sold to the plaintiff by 
party in possession. Dominick v. Farr, 

22 S. C. 585, the houses in this case be- 
ing regarded as personalty. 

VI. SUBDIVISION (6). 
Statute begins to run upon acquisition 

of knowledge placing party on inquiry. 
— Under subd. 6 of this section the six 
year period begins to run at the time 
of the acquisition of knowledge of such 
facts that are sufficient to put the party 
on inquiry which, if developed, will dis- 
close the alleged fraud. Tucker v. Wea- 
thersbee, 98 S. C. 402, 82 S. E. 638, 640. 
See also, Smith v. Linder, 77 S. C. 535, 
58 S. E. 610; Tolle v. Johnson, 61 S. C. 
34, 39 S. E. 254; Harrell v. Kea, 37 S. C. 
369, 16 S. E. 42; McSween v. McCown, 

23 S. C. 342. 

An action by heirs to set aside a deed 
of their ancestor as obtained by fraud 
will not lie unless commenced within 
six years after the ancestor had suffi- 
cient information to put him on inquiry 
as to the way in which the deed was ob- 
tained. Brown v. Brown, 44 S. C. 378, 22 
S. E. 412. 

If a right of action also then exists. 
Suber v. Chandler, 18 S. C. 526. 



And actual or constructive knowledge 
of the fraud is sufficient. Kibler v. Mc- 
Ilwain, 16 S. C. 550. 

Recordation of a deed will not, by it- 
self, be sufficient notice to put a party 
on inquiry as to the existence of a fraud- 
ulent conveyance. Tucker v. Weathers- 
bee, 98 S. C. 402, 82 S. E. 638, 640, citing 
Means v. Feaster, 4 S. C. 249. But no- 
tice of the recordation of a deed alleged 
to be fraudulent may be considered 
along with other facts and circumstances 
of which the contesting party has no- 
tice. Id. 

But only a suspicion that there is 
something wrong about the transaction 
is not sufficient to place party on in- 
quiry. Beattie v. Pool, 13 S. C. 379. 

The fact that plaintiff knew his daugh- 
ter-in-law was living on the land, and 
that she told him the property had been 
conveyed to her, was not sufficient no- 
tice of fraud to require plaintiff to bring 
an action to set aside the deed within 
six years. Harrell v. Kea, 37 S. C. 369, 16 
S. E. 42. 

After which, reasonable diligence to 
ascertain existence of fraud must be 
used. — After a party is possessed of facts 
sufficient to place him on inquiry he 
must exercise reasonable diligence to 
ascertain the existence of the alleged 
fraud. Tucker v. Weathersbee, 98 S. C. 
402, 82 S. E. 638, 640. 

Where certain alleged fraudulent con- 
veyances were made in 1894 and 1896 
and valuable improvements were placed 
on the property by the vendee and the 
making of the conveyances could have 
been immediately ascertained by the 
exercise of the slightest diligence, credi- 
tors of the husband of the grantee were 
barred by laches from maintaining a 
suit instituted in 1910 to have the con- 
veyances set aside. Tucker v. Weathers- 
bee, 98 S. C. 402, 82 S. E. 638, and the 
authorities therein cited. 

And the conflict in the rules prior to 
the code. — In the case of McLure v. 
Ashby, 7 Rich. Eq. 430, at page 444, the 
rule is laid down in these words: "The 
notice of the fraud, the want of which 
will prevent the statute from running, 
is not alone positive information that 
a fraud has been actually committed. 
The notice will be sufficient to prevent 
the suspension of the statute if it be 
such as would put a reasonably diligent 
man upon inquiry. Nor must the ag- 
grieved party wait until he has discov- 
ered evidence by which he may estab- 
lish the fraud in a court of justice. If 
he has knowledge that a fraud has been 
committed, though that knowledge be 
confined to himself, he must proceed 
diligently; for the statute in such case 
will not be suspended." Harrell v. Kea, 
37 S. C. 369, 16 S. E. 42, 43. 



Page 229 



Actions Other Than for Recovery of Realty 



§ 388 



In Shannon v. White, 6 Rich. Eq. 96, 
101, 9 Am. Dec. 115, we find the follow- 
ing language: "On the trial, then, of 
this question of notice, it was incumbent 
upon the defendant to prove that the 
plaintiff had notice of the fraud more 
than four years prior to the filing of 
the bill. And here it is to be remarked 
that it would not be sufficient to prove 
that the plaintiff had a suspicion of the 
fraud, but it is necessary to bring home 
to the defendant (doubtless a misprint 
for 'plaintiff) a knowledge of the facts 
constituting the fraud. Suppose some 
one were to tell him that a fraud had 
been committed, it would not be suf- 
ficient, unless he were informed of the 
facts constituting the fraud, or put in 
possession of a clew, by which, with a 
proper diligence, he might come to a 
knowledge of the facts." Harrell v. Kea, 
37 S. C. 369, 16 S. E. 42, 43. 

Has been removed to some extent by 
the enactment of this section. — It is 
somewhat difficult to reconcile these 
two statements of the rule, inasmuch as 
the former seems to imply that mere 
knowledge of the fact that a fraud has 
been committed, without a knowledge 
of the facts which would establish such 
fraud, or the means by which such 
knowledge of the facts might be ac- 
quired by the use of due diligence, would 
not be sufficient; while the latter seems 
to imply that mere knowledge that a 
fraud had been committed would be 
sufficient. But fortunately the whole 
matter has been taken out of the do- 
main of judicial exposition, and the 
doubt and conflict theretofore existing, 
was removed by the enactment of this 
section. — Ed note. 

Mr. Justice McGowan, as the organ of 
the Supreme Court, in construing this 
section in the case of Beattie v. Pool, 13 
S. C. 379, expressly approved the rule 
laid down in Shannon v. White, supra, 
so that, the rule there stated may be con- 
sidered as the one adopted in this state. 
See also, Harrell v. Kea, 37 S. C. 369, 16 
S. E. 42. It seems, however, that the 
more recent cases have not always 
drawn the distinction between the two 
rules stated above, and the rule in the 
Shannon Case, supra, has not in every 
case been applied with any perceptible 
degree of rigidity. 

Burden is on defendant to show plain- 
tiff had knowledge of fraud. — The bur- 
den is on the defendant to show that the 
plaintiff had knowledge of the fraud, 
or of such facts as would have led to 
knowledge if pursued with reasonable 
diligence. Grayson v. Fidelity Life Ins. 
Co., 114 S. C. 130, 103 S. E. 477, and the 
authorities there cited. See also, Means v. 
Feaster, 4 S. C. 249, 257; Richardson v. 
Mounce, 19 S. C. 477, where knowledge 



of the fraud was denied in the complaint. 

But if action is commenced after ex- 
piration of period, affirmative denial of 
knowledge is necessary. — Under subd. 6 
of this section, it is essential, in action 
for equitable relief on the ground of 
fraud, brought more than six years af- 
ter the occurrence, to allege that fraud 
was not discovered until within the six- 
year period. Grayson v. Fidelity Life 
Ins. Co., 114 S. C. 130, 103 S. E. 477, cit- 
ing Smith v. Linder, 77 S. C. 535, 58 S. E. 
610. 

Section merely prohibits suit after 
limitation period expires. — This section 
(subd. 6) does not have the effect of con- 
verting a fraudulent deed into a valid 
deed, by reason of the lapse of the pre- 
scribed time, but it simply forbids the 
right of action for relief on the ground 
of fraud; and hence, if the question as to 
the fraudulency of the deed arises in any 
other way than in such an action, there 
is nothing in this section which forbids 
its being assailed for fraud. Jackson v. 
Plyler, 38 S. C. 496, 17 S. E. 255, 258, 37 
Am. St. Rep. 782, citing Amaker v. New, 
33 S. C. 28, 11 S. E. 386, 8 L. R. A. 687. 

Subd. 6 of this section does not prevent 
a mortgagee, in a foreclosure suit, from 
showing that the conveyance of the land 
by the mortgagor prior to the mortgage 
under which defendant claims para- 
mount title was fraudulent, though such 
attack was not made within the period 
of limitation. Jackson v. Plyler, 38 S. C. 
496, 17 S. E. 255, 256, 37 Am. St. Rep. 782. 

Such a holding does not violate the 
provisions of subd. 6 of this section for 
the reason that the action is not to set 
aside the deed for fraud, but to recover 
land of which the questioned deed is a 
link in the chain of title. Amaker v. 
New, 33 S. C. 28, 11 S. E. 386, 8 L. R. A. 
687. See also, Wilson v. Kelly, 16 S. C. 
216. 

Subdivision applies only where action 
based on fraud. — Subd. 6 of this section 
does not apply to a counterclaim for the 
conversion of property and the conceal- 
ment thereof, when the tort is waived, 
and a recovery is sought on an implied 
contract, as it is not based on fraud, and 
was not formerly solely cognizable in the 
court of chancery. Lenhardt v. French, 
57 S. C. 493, 35 S. E. 761. 

But it is not confined to secret frauds. 
— There is nothing in subd. 6 of this 
section limiting the application of the 
provision to secret frauds. Toole v. John- 
son, 61 S. C. 34, 39 S. E. 254, 257, apply- 
ing the provision to a transaction (chill- 
ing the bidding) at a public sale. 

Cancellation of deed executed under 
duress. — A suit for cancellation of a 
deed, as executed under duress, comes 
clearly within the provision "solely cog- 
nizable by the court of chancery," in 



§ 388 



Code of Civil Procedure 



Page 230 



subd. 6. Furthermore, it is "an action 
for relief on the ground of fraud" within 
the meaning of the term "in equity ju- 
risprudence." National Bank of Savan- 
nah v. All, 260 F. 370, 384. 

Cancellation of forged deed. — In the 
case of Du Pont v. Du Bos, 52 S. C. 244, 
29 S. E. 665, where it was sought to can- 
cel a forged deed, the court said: 

"At law fraud must be taken advan- 
tage of within six years of its discovery. 
Where, however, an equitable action 
must be brought, by analogy a court of 
equity will follow the period fixed in 
law cases by statute." 

Cancellation of deed for illegal con- 
sideration. — The limitation provided in 
subd. 6 of this section does not apply to 
a suit to cancel a conveyance of lands on 
the ground that the consideration for the 
conveyance (which was the suppression 
of criminal proceedings) was illegal. All 
v. All, 250 Fed. 120, the court saying that 
this section was inapplicable to equity 
suits of this kind. 

Conveyances in fraud of creditors. — 
In the case of Smith v. Linder, 77 S. 
C. 535, 58 S. E. 610, and Tucker v. Weath- 
ersbee, 98 S. C. 402, 82 S. E. 638, the 
Supreme Court of South Carolina held a 
suit in equity to set aside conveyances in 
fraud of creditors a suit within the 
meaning of this section. 

Where owner stored cotton in ware- 
house to be redelivered on surrender of 
certificate, no cause of action for con- 
version accrued, as regards limitations 
statute, until owner demanded rede- 
livery. Roberts v. James et al., 160 S. C. 
291, 158 S. E. 689. 

Widow's failure to commence action to 
vacate purported renunciation of dower 
on ground of fraud within six years af- 
ter discovery of alleged fraud did not 
bar her right to admeasurement of dow- 
er on husband's death, since wife has 
no right of dower until husband's death. 
Tuten v. Almeda Farms et al., 184 S. C. 



195, 192 S. E. 153. 

Beneficiary's action against insurer 
for damages for alleged wrongful and 
fraudulent cancellation of policy is 

barred where insured died more than 
six years after receiving notice of can- 
cellation of policy for nonpayment of 
premuims without having taken action 
to have policy continued in force. Hun- 
gerpiller v. Acacia Mut. Life Ins. Co., 
194 S. C. 264, 9 S. E. (2d) 553. 

VII. SUBDIVISION (7). 

Agreement decreasing period of lim- 
itation is void. — In view of subd. 7 of 
this section, a constitutional provision of 
a mutual benefit order that no action 
shall be brought after six months from 
disallowance of claim does not bar an ac- 
tion until after six years. Sternheimer v. 
Order of United Commercial Travelers 
of America, 107 S. C. 291, 93 S. E. 8. 

The purpose of the legislature was to 
avoid such stipulations in policies of in- 
surance; and, although there are other 
provisions of the statutes to the effect 
that the constitution and laws of frater- 
nal benefit associations shall be binding 
upon the members thereof, and that the 
general insurance laws of the state shall 
not apply to such associations, unless 
specifically made applicable thereto, 
these provisions when construed togeth- 
er, and in connection with previous and 
subsequent legislation on the same sub- 
ject show that the legislature did not 
intend to except the policies of these 
associations from the provisions of subd. 
7 of this section. Sternheimer v. Order 
of United Commercial Travelers of 
America, 107 S. C. 291, 93 S. E. 8, 12. 

Agreement changing period of limita- 
tion is void. — See this catchline under 
the instant section, analysis line II. 

Cited, as to inapplicability to contract 
entered into prior to enactment of stat- 
ute, Sample v. Ins. Co., 46 S. C. 491, 24 
S. E. 334. 



5 389. Three years. — Within three years: 

(1) An action against a sheriff, coroner or constable, upon a liability in- 
curred by the doing of an act in his official capacity, and in virtue of his 
office, or by the omission of an official duty, including the non-payment 
of money collected upon an execution. But this section shall not apply to 
an action for an escape. 

(2) An action upon a statute, for a penalty or forfeiture, where the action 
is given to the party aggrieved, or to such party and the State, except 
where the statute imposing it prescribes a different limitation. 

1932 Code, § 389; Civ. P. '22, § 332; Civ. P. '12, § 138; Civ. P. '02, § 113; 1870 (14) 
§ 115. 



Test for "action upon a statute." — In 

determining what is "an action upon a 
statute" within the meaning of this sec- 
tion, the inquiry is whether a penalty or 



a cause of action for a penalty exists 
irrespective of the statute. If the action 
is allowed only by virtue of the statute 
then it is "an action upon a statute." 



Page 231 



Actions Other Than for Recovery of Realty 



§ 392 



Sauls-Baker Co. v. Atlantic Coast Line 
Ry. Co., 109 S. C. 285, 96 S. E. 118, 119. 

This section applies unless statute im- 
posing penalty prescribes different peri- 
od. — In the dissenting opinion in Land 
Mortgage Investment & Agency Co. v. 
Gillam, 49 S. C. 345, 26 S. E. 990, 999, 29 
S. E. 203, it is said that the provisions of 
this section show beyond dispute that an 
action for a penalty or forfeiture im- 
posed by statute must be commenced 
within three years from the accrual of 
the cause of action, except where the 
statute imposing the penalty or forfei- 
ture prescribes a different period. 

But a different limitation may be fixed 
by implication. — It seems that the stat- 
ute imposing the penalty need not ex- 
pressly provide a different limitation so 
as to make the instant section inapplica- 
ble. It is sufficient if the statute, by plain 
implication, provides a different limita- 
tion. See Earle v. Owings, 72 S. C. 362, 
51 S. E. 980, 982. 

Recovery of statutory penalty for loss 
of goods in transit. — An action to recov- 
er the penalty, provided by § 7165 of the 
Civil Code, for failure of a common 
carrier to pay claim for loss in transit 
within a specified period, is an action 
upon a statute within the meaning of the 
instant section. Sauls-Baker Co. v. At- 
lantic Coast Line Ry. Co., 109 S. C. 285, 
96 S. E. 118. Section 7165 of the Civil 
Code provides no limitation, and there- 
fore an action for the recovery of the 



penalty must be brought within the 
three year limitation in this section. Id. 

The action for the recovery of the pen- 
alty for charging usurious interest ac- 
crues when the usurious interest is paid. 
Land Mortgage, etc., Co. v. Gillam, 49 
S. C. 345, 26 S. E. 990, 1000, 29 S. E. 203. 
(Dissenting opinion.) 

A proceeding to estreat a recognizance 
is- not an action upon a statute for a for- 
feiture or penalty, so as to make this 
section applicable. State v. Cornell, 70 S. 
C. 409, 50 S. E. 22, 23. 

Counterclaim follows the main con- 
tract.— The statute (Civ. Code, § 6740) 
imposing the penalty for usury, and pro- 
viding the recovery thereof by counter- 
claim, by plain implication, indicates 
that the counterclaim is available and is 
effective as long as the right of action 
exists on the principal sum. In other 
words, the counterclaim follows the 
main contract, and it is not barred with- 
in the three years under this section. 
Earle v. Owings, 72 S. C. 362, 51 S. E. 
980, 982. 

Action to recover tax penalties from 
taxpayers brought by surety which was 
subrogated to right of county was an 
"action for collection of taxes" under 
10-year statute and not an "action for a 
penalty or forfeiture" under this section 
and section 390. American Surety Co. v. 
Hamrick Mills, and three other cases, 
191 S. C. 362, 4 S. E. (2d) 308. 



§ 390. Two years. — Within two years: 

(1) An action for libel, slander, assault, battery, or false imprisonment. 

(2) An action upon a statute, for a forfeiture or penalty to the State. 
1932 Code, § 390; Civ. P. '22, § 333; Civ. P. '12, § 139; Civ. P. '02, § 114; 1870 (14) 

§ 116. 



Stipulated damages are not penalties. 

— An amount stated as a forfeiture for 
each year of the unexpired term of an 
escaped convict is not a technical penal- 
ty, but is stipulated damages, and an ac- 
tion therefor is not barred in two years. 
Lipscomb v. Seegers, 19 S. C. 425. 

Proceeding to estreat recognizance is 
not within section. — A proceeding to es- 
treat a recognizance is not an action 
upon a statute for a penalty on the state 



within the meaning of subd. (2) of this 
section. State v. Cornell, 70 S. C. 409, 
50 S. E. 22, 23. 

"Fine" construed as "penalty." State 
v. Liggett & Myers Tobacco Co., 171 S. 
C, 511; 172 S. E. 857. 

This section does not apply to action 
for recovery of tax penalties. American 
Surety Co. v. Hamrick Mills, 191 S. C. 
362, 4 S. E. (2d) 308. 



§ 391. One year. — Within one year: 

An action against a sheriff or other officer for the escape of a prisoner ar- 
rested or imprisoned on civil process. 

1932 Code, § 391; Civ. P. '22, § 334; Civ. P. '12, § 140; Civ. P. '02, § 115; 1870 (14) 
S 117. 



§ 392. Action upon current account. — In an action brought to recover a 
balance due upon a mutual, open, and current account, where there have 
been reciprocal demands between the parties, the cause of action shall be 



§ 392 



Code of Civil Procedure 



Page 232 



deemed to have accrued from the time of the last item proved in the ac- 
count on either side. 

1932 Code, § 392; Civ. P. '22, § 335; Civ. P. '12, § 141; Civ. P. '02, § 116; 1870 (14) 
§ 118. 



An action on a sealed note alone can- 
not in any sense be called an "open ac- 
count." Chapman v. Chapman, 31 S. C. 
405, 10 S. E. 106, 107. 

Nor may a note be considered evi- 
dence of a mutual account. — Judge 
O'Neall said, in delivering the judgment 
of the court in the case of Cunningham 
v. Executors of Green, Dud. (S. C.) 351: 
"It is true beyond all question that a 
note of hand cannot be regarded as the 
evidence of a mutual account. It has di- 
rectly the contrary effect; it furnishes a 
presumption that the accounts between 
the parties to its date have been set- 
tled. The plaintiff's due-bill to the testa- 
tor cannot, therefore, be regarded as a 
mutual account between these parties," 
etc. Chapman v. Chapman, 31 S. C. 405, 
10 S. E. 106, 107. 

Where, in an action on a sealed note, 



the defendant set up as a counterclaim 
an account running back nine years, on 
which only one item was credited to the 
plaintiff, it was held that this did not es- 
tablish a mutual account within the 
meaning of this section. Chapman v. 
Chapman, 31 S. C. 405, 10 S. E. 106. 

A suit by patient's committee against 
physician's executrix and devisees to 
set aside patient's will, favoring physi- 
cian, and for accounting as to property 
conveyed to physician and to third party, 
who paid consideration to physician, 
was not barred by six-year limitation, 
where there was mutual current account 
between physician and patient, the last 
entry being within the limitation, and 
patient was illiterate and relied on phy- 
sician's position of trust, which physi- 
cian did not repudiate. Jackson v. John- 
son. 186 S. C. 155; 195 S. E. 239. 



§ 393. Action for penalties. — An action upon a statute, for a penalty or 
forfeiture given, in whole or in part, to any person who will prosecute for 
the same, must be commenced within one year after the commission of the 
offense; and, if the action be not commenced within the year by a private 
party, it may be commenced within two years thereafter, in behalf of the 
State, by the attorney general, or the solicitor of the circuit where the 
offense was committed, unless a different limitation be prescribed in the 
statute under which the action is brought. 

1932 Code, § 393; Civ. P. '22, § 336; Civ. P. '12, § 142; Civ. P. '02, § 117; 1870 (14) 
§ 119. 



An action against a railroad company 
for the penalty for violation of the sep- 
arate coach law, is within this section 



and is barred in one year. Sturkie v. 
Southern Ry. Co., 71 S. C. 208, 50 S. E. 

782. 



§ 394. Action for other relief. — An action for relief not hereinbefore pro- 
vided for, must be commenced within ten years after the cause of action 
shall have accrued. 

1932 Code, § 394; Civ. P. '22, § 337; Civ. P. '12, § 143; Civ. P. '02, § 118; 1870 (14) 
§ 120. 



Redemption and recovery of land from 
mortgagee. — An action to redeem land, 
and to recover possession thereof from 
a mortgagee, is not specifically referred 
to in the statute of this State, and this 
section, therefore, governs such an ac- 
tion. Frady v. Ivester, 118 S. C. 195, 110 
S. E. 135, 141. 

In Jones, Mtge., vol. 2, § 1144, it is 
said: "The right of the mortgagor to re- 
deem being an equitable and not a legal 
right, the statute of limitations does not 
strictly constitute a bar- to a bill to re- 
deem; but equity adopts the statutory 
period of 20 years (10 years in this State) 
after forfeiture and possession taken by 



the mortgagee, beyond which the mort- 
gagor shall not be allowed to redeem 
if he has paid no interest in the mean- 
time. Such lapse of time affords evidence 
of a presumption that the mortgagee has 
abandoned his right. . . . After the 
mortgagee has remained in possession 
for 20 years (10 years in this State) with- 
out accounting or in any way acknowl- 
edging the right of redemption in the 
mortgagor, the latter cannot redeem." 
Frady v. Ivester, 118 S. C. 195, 110 S. E. 
135, 141. 

Action to set aside deed for fraud. — 
In Smith v. Linder, 77 S. C. 535, 58 S. E. 
610, counsel strenuously maintained that 



Page 233 Actions for Services against Certain Counties § 396-1 

this section governs an action to set aside See generally, McMakin v. Gowan, 18 

a deed as obtained by fraud. Subd. (6) S. C. 502; Williams v. Halford, 73 S. C. 

of § 388 clearly covers such a case, and 125, 53 S. E. 88; Brock v. Kirkpatrick, 69 

the court in the above cited case so held. S. C. 231, 48 S. E. 72. 

§ 395. Clause in contract not in conformity to statute of limitations de- 
clared void. — No clause, provision or agreement in any contract of whatso- 
ever nature, verbal or written, whereby it is agreed that either party shall 
be barred from bringing suit upon any cause of action arising out of said 
contract if not brought within a period less than the time prescribed by the 
statute of limitations, for similar causes of action, shall bar such action, 
but the same may be brought notwithstanding such clause, provision or 
agreement if brought within the time prescribed by the statute of limita- 
tions in reference to like causes of action. 

1932 Code, § 395; Civ. P. '22, § 338; Civ. P. '12, § 144; 1911 (27) 130. 

Change of limitation in contract is to ter the date stated in the bond as the 

be ignored. — Under this section, suit may latest date on which suit thereunder 

be brought against a surety after the ex- could be instituted. City of Sumter v. 

piration of the six months' period within United States Fidelity & Guaranty Co., 

which the bond, upon which action is 116 S. C. 29, 106 S. E. 778. 

brought, required it should be brought. Action brought under this section 

State Agricultural, etc., Soc. v. Taylor, within the period of limitation on a 

104 S. C. 167, 88 S. E. 372. contractor's bond cannot be dismissed 

Uuder this section an action brought though it was brought after the period 

against a surety company on a bond stated in the bond, one year. Barringer 

within the period of limitations cannot v. Fidelity & Deposit Co., 161 S. C, 4, 

be dismissed, though it was brought af- 159 S. E., 373. 

§ 396. Actions by State. — The limitations prescribed by this chapter 
shall apply to actions brought in the name of the State, or for its benefit, 
in the same manner as to actions by private parties. 

1932 Code, § 396; Civ. P. '22, § 339; Civ. P. '12, § 145; Civ. P. '02, § 119; 1870 (14) 
5 121. 

An action in the name of the state, its tracks, may be barred by limitations, 

on the relation of the highway depart- in view of this statute. State ex rel. State 

ment, against a railroad to recover part Highway Department v. Piedmont & N. 

of the cost of constructing a bridge over Ry. Co., 186 S. C. 49, 194 S. E. 631. 

TITLE 4-A 

Actions for Services against Counties over 85,000 

§ 396-1. Bring action for services rendered against counties over 85,000 
people within one year from date of accrual of right. — No action against 
any county of this state, having a population as shown by the United 
States official census of 1930 in excess of eighty-five thousand (85,000) 
people, or against any county of said state which may be shown by any 
future United States official census, to have a population in excess of said 
number, shall be brought by any former, present or future officer (includ- 
ing county auditors and county treasurers) employee, or agent thereof 
on account of any claim for salary, wages, fees, costs, or other emolument 
or claim alleged to be due him or her, on account of services rendered 
or performed, nor shall any such action be brought upon any such claim 
by an assignee or personal representative thereof, where the cause of ac- 
tion shall accrue after March 17, 1938, unless the action be begun in a court 
of record having jurisdiction thereof, within one year from the date of 



§ 396-1 Code of Civil Procedure Page 234 

the accrual of the right of action: provided that in all cases where such 
right of action, based upon the matters above set forth, shall have accrued 
on or prior to March 17, 1938, and the same is not barred under the present 
statute of limitations, an action for the causes mentioned may be brought 
in a court as above outlined within a period of three months from March 
17, 1938, but not thereafter. 
1938 (40) 1631. 

This statute, in so far as it relates to process clauses of the State and Federal 

claims against counties which had ac- Constitutions. Gillespie v. Pickens Coun- 

crued on or before the passage of the ty, 197 S. C. 217, 14 S. E. (2d) 900. 
act, violates the equal protection and due 



TITLE 5 

Parties to Civil Actions 

Chapter 14. Parties to Civil Action Generally, § 397. 

Chapter 15. Wrongful Death Actions and Survival of Actions, § 410. 



CHAPTER 14 
Parties to Civil Action Generally 

397. Real party in interest to sue. ing realty. 

398. Action by assignee. 406. One may sue or defend for others. 

399. Action by representative. 407. Action against parties to bills and 

400. Action by and against married notes. 

woman. 408. Abatement of action. 

401 and 402. Infants and their guardians. 409. Interpleader. 

403. Party plaintiff. 409-1. Insane persons. 

404. Party defendant. 409-2. Imprisoned persons. 

405. State as defendant in action affect- 409-3. Powers of guardians ad litem. 

§ 397. Party in interest to sue — action by grantee of land held adversely. 

Every action must be prosecuted in the name of the real party in interest, 
except as otherwise provided in section 399, but this section shall not be 
deemed to authorize the assignment of a thing in action not arising out of 
contract. But an action may be maintained by a grantee of land in the 
name of the grantor, or his or her heirs or legal representatives, when the 
grant or grants are void by reason of the actual possession of a person 
claiming under a title adverse to that of the grantor at the time of the de- 
livery of the grant, and the plaintiff shall be allowed to prove the facts 
to bring the case within this provision. 

1932 Code, § 397; Civ. P. '22, § 354; Civ. P. '12, § 160; Civ. P. '02, § 132; 1870 (14) 
§ 134. 

In general. — This section does little It is said in Johnson v. Dawkins, 20 S. 

more than give expression to the gen- C. 528, at page 532, the effect of these 

eral principle long established, that all two sections, when construed together, 

persons interested in the subject-matter is the same as if the statutory provision 

of the suit should be made parties. Cath- read as follows: "either the real party in 

cart v. Sugenheimer, 18 S. C. 123, 131. interest or the party with whom a con- 

This section is to be read in connection tract is made for another may institute 

with § 399. See Billings v. Williamson, an action on such contract." To the same 

6 S. C. 119, followed in Carroll v. Still, effect, see Billing v. Williamson, 6 S. C. 

13 S. C. 430. 119, recognized and followed in Carroll 



Page 235 



Parties to Civil Action Generally 



§ 397 



v. Still, 13 S. C. 430. And see also, Barn- 
well v. Marion, 54 S. C. 223, 32 S. E. 313, 
314. 

Suit must be brought and continued 
by real party in interest. — This section 
not only prohibits the bringing of an ac- 
tion by one not the real party in interest, 
but prohibits its further prosecution by a 
plaintiff after his interest has been ex- 
tinguished. Matthews v. Cantey, 48 S. C. 
588, 26 S. E. 894, applying this rule in 
an action by a pledgee of a note and 
mortgage, where the debt was paid in 
full after the commencement of the ac- 
tion. 

The word "prosecuted" used in this 
section implies that the suit must be 
brought and continued in the name of 
the real party in interest, except as pro- 
vided in § 399. Matthews v. Cantey, su- 
pra. 

Decedent's heirs names. — In action in 
their own names, individually, and as 
attorneys in fact for a decedent's heirs, 
plaintiffs were required under statute to 
set out heirs' names. Wilson et al. v. 
Gibbes Machinery Co., et al., 189 S. C. 
426, 1 S. E. (2d) 490. 

Otherwise the court is without juris- 
diction. — Unless the real party in inter- 
est institutes the suit and is before the 
court, the court is without jurisdiction. 
Hodges v. Lake Summit Co., 155 S. C. 
436, 152 S. E. 658. 

And plaintiff must show that he is 
the real party in interest. — A party in- 
stituting an action must be able to show 
that he is the real party in interest with- 
in the meaning of this section, or that he 
falls within the exception mentioned in 
§ 399. Sullivan v. Hellams, 6 S. C. 184. 

And section prohibits the institution 
of a suit by a nominal party. Hodges v. 
Lake Summit Co., 155 S. C. 436, 152 S. 
E. 658. 

The pledgee of a note, after the debt 
for which the note was held in pledge is 
paid, is only a nominal party and cannot, 
under this section institute suit upon the 
note. Hodges v. Lake Summit Co., 155 
S. C. 436, 152 S. E. 658, 666. 

Collusive assignments are prohibited. 
— This section prohibits the assignment 
to a resident trustee of a foreign note, 
which assignment is made for the sole 
purpose of evading the laws of the for- 
eign state (statute of limitations in the 
case cited below). In such case the as- 
signee cannot be considered the real 
party in interest and he cannot institute 
suit. Hodges v. Lake Summit Co., 155 
S. C. 436, 152 S. E. 658. 

Demurrer is proper method of raising 
real party in interest question. — The 
proper method of taking advantage of 
the fact that the plaintiff is not the real 
party in interest seems to be by de- 
murrer. See Sullivan v. Hellams, 6 S. C. 
184, and the authorities therein cited. It 



has been said that the objection can only 
be raised bv demurrer. State v. Moses, 18 
S. C. 366, 371. 

Amendment to show trustee capacity 
of plaintiff. — Where the court grants a 
nonsuit for defect of parties plaintiff it 
is proper to refuse to allow the plaintiff 
to amend so as to make the plaintiff 
trustee for the absent parties, where 
there is no evidence that the plaintiff 
was in fact trustee for such parties. Wil- 
liams v. Working Benevolent, etc., 
Lodge, 109 S. C. 233, 95 S. E. 517. 

In other words, § 399 serves to relax 
the rigid rule of the instant section only 
where the plaintiff is in fact trustee for 
the absent parties. Id. 

Assignee of tort claim may sometimes 
sue. — In Bultman v. Atlantic Coast Line 
R. Co., 103 S. C. 512, 88 S. E. 279, 280, 
the court said that in spite of the pro- 
hibition in this section against the as- 
signment of a thing in action not aris- 
ing out of contract, this section must be 
considered modified by § 419 which pro- 
vides for the survival of causes of action. 
The court further held that in view of 
§ 419, a right of action against a railroad 
company, for firing premises, may be 
assigned notwithstanding the provisions 
of the instant section. 

Illustrations of "real party in interest." 
— The general principles which have just 
been discussed have been applied in 
various forms of actions. We set out in 
the following paragraphs some of these 
illustrations in order to show who is con- 
sidered the real party in interest under a 
given set of facts. — Ed. note. 

Suit to enforce right of subrogation 
of insurance company is properly 
brought in name of insured. — Where an 
insurance company pays a loss under a 
policy, and becomes subrogated to the 
rights of the insured against the person 
whose tortious act gave rise to the loss T 
the proper mode of enforcing such right 
of subrogation is by an action in the 
name of the assured for the benefit of 
the insurance company. Mobile Ins. Co. 
v. Columbia, etc., R. Co., 41 S. C. 408, 
19 S. E. 858, 44 Am. St. Rep. 725, 860. 
And there is nothing in this section to 
prevent this mode of enforcing the right. 
People's Oil, Fertilizer Co. v. Charles- 
ton, etc., Ry. Co., 83 S. C. 530, 65 S. E. 
733, 735. 

Because the insured is regarded a 
trustee. — This holding is based upon the 
fact that the insured is considered a 
trustee for the insurance company to the 
extent of the money paid by the insur- 
ance company. See Mobile Ins. Co. v. 
Columbia, etc., R. Co., 41 S. C. 408, 19 
S. E. 858, 44 Am. St. Rep. 725; People's 
Oil, etc., Co. v. Charleston, etc, Ry. Co., 
83 S. C. 530, 65 S. E. 733, where the 
rights of the insured were assigned to 
the insurance company, but the language 



§ 397 



Code of Civil Procedure 



Page 236 



employed showed an intent to subrogate 
the company to the rights of the insured 
to a limited extent only. 

But the insurance company may be 
joined as a party. — The insurance com- 
pany, for whom the legal title to the 
cause of action is held in trust, may, 
however, be joined as a party to the 
suit. People's Oil, etc., Co. v. Charleston, 
etc., Ry. Co., 83 S. C. 530, 65 S. E. 733, 
735. In either case the court will guard 
the defendant from liability to be sug- 
jected to pay the same loss twice. Id. 

Suit by receiver of mutual insurance 
company on behalf of policy and cer- 
tificate holders of fraternal group in- 
surance. — A receiver of a mutual insur- 
ance company is not a "real party in in- 
terest" so as to be entitled under statute 
to bring action on behalf of policy and 
certificate holders of fraternal group in- 
surance, which had been taken over by 
mutual insurance company, against other 
insurance companies, which allegedly 
had fraudulently dumped the insurance 
on mutual insurance company, since 
holders of claims on such policies were 
the true owners, and since mutual in- 
surance company was only secondarily 
liable. Ex Parte Brock. 183 S. C. 469; 
191 S. E. 342. 

Suit on administrator's bond. — This 
section does not prevent a probate judge 
and the heirs of a deceased person from 
joining as co-plaintiffs in a suit on an 
administrator's bond. McCorkle v. Wil- 
liams, 43 S. C. 66, 20 S. E. 744. But the 
distributees themselves may maintain an 
action on the bond without joining the 
probate judge as a party plaintiff. Ka- 
miner v. Hope, 9 S. C. 253, cited in Mc- 
Corkle v. Williams, supra. 

The bond in such case is not made for 
the benefit of the probate judge but he 
is the custodian and trustee of the per- 
sons for whose benefit the bond was 
given, and he falls within the exception 
stated in § 399. See Johnson v. Dawkins, 
20 S. C. 528. 

Suit on bond is properly instituted by 
beneficiary. — Suit may be instituted on 
a bond by the person for whose benefit 
such bond was given, as such person is 
the real party in interest, within the 
meaning of this section, even though the 
bond does not expressly name the 
obligee. General Motors Acceptance 
Corp. v. Hutto, 136 S. C. 207, 134 S. E. 
232. 

Or legal title holder. — A mortgage giv- 
en to secure the redemption of certain 
bonds issued by the mortgagor is prop- 
erly sued upon by and in the name of 
the obligee of the bonds secured by the 
mortgage, who is the legal owner and 
holder thereof. City Council of Charles- 
ton v. Caulfield, 19 S. C. 201, 210. 



Holder of one of several bonds secured 
by mortgage may foreclose. — Plaintiff, 
holder of one of eight bonds secured by 
real estate mortgage, may bring action 
to foreclose; although she has not title 
to mortgage. H i b b e 1 1 v. Charleston 
Heights Co. et al., 163 S. C, 327, 161 S. 
E., 499. 

Tort action by wife against husband. 
— Under this section and § 400 a wife 
may maintain an action in tort against 
her husband for willfully beating her. 
Prosser v. Prosser, 114 S. C. 45, 102 S. 
E. 787. 

Suit on note for benefit of another. — 
This section prohibits the payee of a 
sealed note from maintaining an action 
thereon, where he sues for the benefit of 
another. Sullivan v. Hellams, 6 S. C. 184. 

An action for the benefit of another 
could have been maintained prior to this 
section, under the Act of 1798, com- 
monly called the Statute of Ann which 
was repealed when this section was 
adopted. Sullivan v. Hellams, 6 S. C. 
184, 185. See also, Pomeroy's Treatise 
on Remedies, § 138. 

Suits on official bonds. — The party ag- 
grieved by the misconduct of a public 
officer may maintain an action, under 
this section as the real party in interest, 
on the official bond of such officer. 
Greenville County v. Runion, 9 S. C. 1, 
the county in this case being the ag- 
grieved party. 

For statute permitting a county to sue 
and be sued, see § 888 of the Civil Code, 
and the note thereto. 

In State v. Moses, 18 S. C. 366, the 
court said that it would seem that an 
action on the official bond of a clerk of 
court may be brought in the name of the 
State alone. 

Guardian assignee of bond may sue 
without joining ward. — Under this and 
§ 399 a guardian who is the assignee of a 
bond made payable to a certain trustee 
or his assigns may sue on it without join- 
ing his wards. Barnwell v. Marion, 54 
S. C. 223, 32 S. E. 313. 

Lunatic sues in equity by committee. 
— Where equitable relief is sought in the 
court of chancery, it seems that the com- 
mittee may sue alone and without using 
the name of the lunatic as a party plain- 
tiff, and that the judgment will be as 
binding upon the lunatic's estate as if 
he were personally present. Cathcart v. 
Sugenheimer, 18 S. C. 123, and the au- 
thorities therein cited. 

But an action at law must be in name 
of lunatic. — An action at law for the re- 
covery of the property of a lunatic or 
damages for its detention, must be 
brought in the name of the lunatic by his 
committee. Cathcart v. Sugenheimer, 18 
S. C. 123, and authorities cited 



Page 237 



Parties to Civil Action Generally 



§ 398 



§ 398. Assignment of thing in action. — In the case of an assignment of a 
thing in action, the action by the assignee shall be without prejudice to 
any set-off or other defense existing at the time of, or before notice of, the 
assignment; but this section shall not apply to a negotiable promissory 
note or bill of exchange, transferred in good faith, and upon good con- 
sideration, before due. 

1932 Code, § 398; Civ. P. '22, § 355; Civ. P. '12, § 161; Civ. P. '02, § 133; 1870 (14) 
§ 135. 



This section, which applies only to the 
"assignee." — This section refers to an 
action "by an assignee" and has no ap- 
plication to an action by the representa- 
tives of an assignor against a subas- 
signee. Westbury v. Simmons, 57 S. C. 
467, 35 S. E. 764, 769. 

And does not affect rights of those 
dealing in good faith with an assignee 
clothed with the indicia of ownership. — 
Hence where life policies were assigned 
by insured to bank for loan, which bank 
paid the premiums and later notified 
insurer that they were absolute property 
of bank, insurer was justified in dealing 
with the bank alone in making loans un- 
der the policies. New York Life Ins. Co. 
v. Brown, 99 F. (2d) 199 (reversing 22 F. 
S. 82.) 

Places the assignee "in the shoes" of 
his assignor. — In view of this section an 
assignee of a note and mortgage stands 
in no better position than did his as- 
signor. British & American Mortg. Co. 
v. Smith, 45 S. C. 83, 22 S. E. 747; Wood- 
row v. Frederick, 133 S. C. 431, 131 S. 
E. 598; Patterson v. Rabb, 38 S. C. 138, 
17 S. E. 463, 19 L. R. A. 831. 

Assignee takes subject equities be- 
tween original assignor and his assignee 
and original assignor and his debtors. — 
Assignee of nonnegotiable bond and 
mortgage from attorney, to whom same 
was endorsed in blank by original as- 
signor to collect, but who fraudulently 
assigned same, takes said instrument 
subject to equities between original as- 
signor and his assignee as well as to 
equities existing between original as- 
signor and original debtor; and the ori- 
ginal assignor is not estopped from as- 
serting claim to said instrument. Noland 
v. Law, 170 S. C. 345; 170 S. E. 439. 

And the equities and defenses against 
the assignor are available against the 
assignee. — Under this section a nonne- 
gotiable bond and mortgage, given for 
the purchase price of a lot, is subject, in 
the hands of an assignee, to all equities 
and defenses existing between the mort- 
gagee and mortgagor, which in this case 
was an oral agreement that the bond 
was to be paid by commissions to be- 
come due to the mortgagor from the 
mortgagee. Woodrow v. Frederick, 133 
S. C. 431, 131 S. E. 598, and the numer- 
ous authorities therein discussed. See 
also, Moffatt v. Hardin, 22 S. C. 9. 



In Woodrow v. Frederick, 132 S. C. 
431, 131 S. E. 598, 601, it is said that in 
this state no mortgagor has ever been 
denied the right to set up agianst the 
assignee of a mortgage any bona fide 
defense which he had against the origin- 
al mortgagee prior to the notice of as- 
signment. 

And this principle may be thus il- 
lustrated. — Where the purchaser of real- 
ty gave purchase-money mortgage for 
part of price and used part of cash pay- 
ment in satisfaction of prior mortgage, 
but, instead of having mortgage marked 
paid, had it transferred to him, and after 
its maturity pledged it with bank as 
collateral for loan, it was held that un- 
der this section pledgee bank acquired 
no greater rights than purchaser, who, 
as against vendor, could not assert such 
mortgage as lien superior to purchase- 
money mortgage. Willoughby v. Ray, 131 
S. C. 317, 127 S. E. 441. 

The assignee of a distributee's share of 
an estate takes subject to the liability 
of the distributee on the administrator's 
bond, where such distributee is surety 
thereon. Bobo v. Vaiden, 20 S. C. 271. 

Where a note has been signed and 
sealed by one person, and indorsed in 
blank, without seal, by another, the ma- 
ker can set up under this section, against 
the holder for value, before maturity, 
defenses of fraud and failure of consid- 
eration. McLaughlin v. Braddy, 63 S. C. 
433, 41 S. E. 523, 524, 90 Am. St. Rep. 
681. 

In an action by an assignee of a note 
against the maker, the defendant may 
set up a debt due him by the assignor, 
and such debt may be pleaded as a coun- 
terclaim. Sullivan v. Blythe, 14 S. C. 
622. 

In Patterson v. Rabb, 38 S. C. 138, at 
page 152, 17 S. E. 463, 467, 19 L. R. A. 
831, 836, it is said "that, under our law, 
an innocent assignee of a chose in ac- 
tion under seal takes such chose in ac- 
tion subject to all the infirmities in and 
against his assignor." 

Where buyer of land gave a mortgage 
to a third person, who agreed to finance, 
purchase and pay an outstanding mort- 
gage, but took an assignment of the 
outstanding mortgage instead, the mort- 
gage was thereby paid and became dead, 
and one to whom it was subsequently 
assigned after maturity took it subject 
to existing defenses under this section. 



398 



Code of Civil Procedure 



Page 238 



Ives v. Rutland, 135 S. C. 173, 133 S. E. 
539. 

But the rule applies only to equities 
existing at time of assignment or before 
notice thereof. — In order for the general 
rule, embodied in this section, to apply 
it seems to be essential that the equity in 
favor of the debtor should exist at the 
time of the assignment or before notice 
thereof. See dissenting opinion in Mars- 
ton v. Rivers, 138 S. C. 295, 136 S. E. 222, 
230. 

The rule embraced in this section ap- 
plies merely to defenses existing at the 
time of the assignment, in favor of the 
obligor on the chose in action. McCand- 
less v. Klauber, 158 S. C. 32, 155 S. E. 
141, containing many quotations of test- 
writers bearing upon the rule contained 
in this section. 

And the assignee is not affected by 
anything occurring after assignment. — 
This doctrine merely binds the assignee 
to take the bond and mortgage, subject 
to such infirmities as existed against the 
assignor at the date of the assignment. 
The assignee is not bound by anything 
which may have occurred by and 
through the assignor after that date. 
Singleton v. Singleton, 60 S. C. 216, 38 
S. E. 462, 469. 

So that, fraud of assignor after as- 
signment will not affect assignee. — 
Fraud of the assignor perpetrated after 
assignment will not affect the assignee 
unless the assignee participates therein. 
Singleton v. Singleton, 60 S. C. 216, 38 
S. E. 462, 469. And the mere fact that 
the assignee did not have his assign- 
ment placed upon record at the time of 
such fraud will not affect this rule. Id. 
See also, Williams v. Paysinger, 15 S. C. 
171. 

But even after notice the assignee may 
nevertheless prove estoppel against as- 
signor. — Although an assignee does not 
come within the protection of the law 
as a purchaser for valuable considera- 
tion without notice, he, of course, can 
show such acts as estop the assignor 
from asserting his legal rights. Westbury 
v. Simmons, 57 S. C. 467, 35 S. E. 764, 
769. 

Thus, an assignee of stock may, un- 
der this section, show acts of negligence 
not known by him, though known by 
his assignor, which estop the rightful 
owner from asserting title. Maxwell v. 
Foster, 67 S. C. 377, 45 S. E. 927. 

Defense of want of consideration un- 
available. — Since defense of want of 
consideration, as distinguished from fail- 
ure of consideration, was not available 
to original real estate mortgage, it was 
unavailable as against assignee of mort- 
gage. Bank of Charleston v. Oates et. 



al., 160 S. C. 188, 158 S. E. 272. 

Protection of rights of third parties. — 
The rule embraced in this section seems 
not to apply where the court in the ex- 
ercise of its sound judicial discretion 
finds it necessary to dispense with the 
rule in order to protect the equitable 
rights of third persons not parties to the 
suit. Simmons v. Reid, 31 S. C. 389, 9 S. 
E. 1058, 17 Am. St. Rep. 36. 

Burden of proof as to time of accrual 
of equity of defense. — Under this sec- 
tion the burden of showing that the as- 
signment of a past-due mortgage on 
which suit is brought was made before 
the accrual of a set-off in favor of de- 
fendant and against the assignor rests 
upon the plaintiff. Bank of Columbia 
v. Gadsden, 56 S. C. 313, 33 S. E. 575. 

Section applies to successive assign- 
ments. — This section applies to an as- 
signment of a life policy by a person to 
whom the policy had been assigned by 
the insured, and where the assignment 
made by the prior assignee was express- 
ed as the assignment of all the right, 
title, and interest of the prior assignee 
therein, the assignee takes it subject to 
all existing equities. Westbury v. Sim- 
mons, 57. S. C. 467, 35 S. E. 764. 

The transfer of a note carries with it 
a mortgage given to secure payment 
thereof. Ballou v. Young, 42 S. C. 170, 
20 S. E. 84, and the cases therein cited. 

And such mortgage may be adapted 
to the fate of the note it secures. Pat- 
terson v. Rabb, 38 S. C. 138, 152, 17 S. E. 
463, 19 L. R. A. 831. See also, Woodrow 
v. Frederick, 133 S. C. 431, 131 S. E. 
598; Nichols v. Briggs, 18 S. C. 473, 485. 

This section not only does not apply 
to a negotiable promissory note, trans- 
ferred in good faith, and upon good con- 
sideration, before due, but does not ap- 
ply to a mortgage given to secure pay- 
ment of such note. Under such circum- 
stances the rule of the commercial law 
applicable to negotiable promissory 
notes is likewise applicable to the mort- 
gage given to secure payment of the 
same. Ballou v. Young, 42 S. C. 170, 20 
S. E. 84, 85, and the authorities cited. 

A plea of bona fide purchaser will not 
avail an assignee of a note and mort- 
gage transferred after maturity. British 
& American Mortg. Co. v. Smith, 45 S. 
C. 83, 22 S. E. 747. 

Nor is the assignee of a nonnegotialble 
bond and mortgage purchased before 
maturity a "purchaser for value". Dan- 
gerfield v. Brown et. al., 181 S. C. 120, 
186 S. E. 641. 

Certificates of stock have been held in 
this state to be nonnegotiable.L Maxwell 
v. Foster, 67 S. C. 377, 45 S. E. 927, 930, 
and cases there cited. 



Page 239 



Parties to Civil Action Generally 



§ 399 



§ 399. Actions by executor, trustee, etc. — An executor or administrator, 
a trustee of an express trust, or a person expressly authorized by statute, 
may sue, without joining with him the person for whose benefit the action 
is prosecuted. A trustee of an express trust, within the meaning of this 
section, shall be construed to include a person with whom, or in whose 
name, a contract is made for the benefit of another. 

1932 Code, § 399; Civ. P. '22, § 356; Civ. P. '12, § 162; Civ. P. '02, | 134; 1870 (14) 
§ 136. 



Editor's note. — The provisions of this 
section constitute statutory exceptions 
to the general rule embraced in § 397, 
to which section reference is hereby 
made. 

Effect of section when construed with 
§ 397. — The effect of this section, when 
construed with § 397, is that either the 
real party in interest or the party with 
whom a contract is made for another 
may institute an action on such contract. 
Barnwell v. Marion, 54 S. C. 223, 32 S. E. 
313, 314. The instant section is only a 
modification of the rule embodied in § 
397. Williams v. Working Benevolent 
Lodge, 109 S. C. 233, 95 S. E. 517, 519. 

In view of this section a complaint 
should aver for whose benefit the action 
is brought. — Copeland v. Southern Ry. 
Co., 76 S. C. 476, 57 S. E. 535. 

But amendment is allowable only 
where there is evidence of plaintiff's 
fiduciary capacity. — Williams v. Work- 
ing Benevolent Lodge, 109 S. C. 233, 95 
S. E. 517, it was held that an amendment 
should not be allowed when the effect 
thereof would be to make a party the 
trustee of other persons, when there is 
no evidence that such party is in fact 
the trustee of such persons. 

In view of this section, the amendment 
of a complaint by adding a party plain- 
tiff, through error, is harmless, where 
the original plaintiff stood in the posi- 
tion of a trustee of an express trust to 
the person who was added as a plaintiff. 
Cousar v. Heath, 80 S. C. 466, 61 S. E. 
973. 

In an action against a cotton broker 
to recover margins paid to such broker 
to cover losses on a contract for the fu- 
ture delivery of cotton, the evidence was 
considered, and, was held sufficient to 
show that plaintiff was a "trustee of an 
express trust," within the meaning of 
this section. Cousar v. Heath, 80 S. C. 
466, 61 S. E., 973. 

Nor is refusal to amend error where 
plaintiff proves nature of his trust. — The 
refusal to require plaintiff to amend his 
complaint so as to set forth facts show- 
ing for whose benefit the action is 
brought is harmless error where under 
defendant's general denial, the plaintiff 
proved for whom he was trustee, and the 
nature of his trust. Copeland v. South- 
ern Ry. Co., 76 S. C. 476, 57 S. E. 535. 

It is no defense to an action on a note 



that the proceeds belong to the plain- 
tiff as a trustee, since this section en- 
titles him to sue without joining the 
beneficiary. Watford v. Windham, 64 S. 
C. 509, 42 S. E. 597. 

"Trustee of an express trust." — Bank 
that sold certain securities and gave pur- 
chaser trust receipt for said securities, 
which stated it held securities subject to 
order of purchase and agreed to repur- 
chase securities at sale price, held trus- 
tee of an express trust and could fore- 
close securities in its name. Greenwood 
Cotton Mills v. Pace, 172 S. C, 531; 174 
S. E., 473. 

Guardian may sue without joining 
ward. — Under this section a guardian 
who is the assignee of a bond made pay- 
able to a certain trustee or his assigns 
may sue on it without joining his wards. 
Barnwell v. Marion, 54 S. C. 223, 32 S. 
E. 313, reconciling the early cases. Moore 
v. Hood, 9 Rich, Eq. 311, 70 Am. Dec. 
210; and Long v. Cason, 4 Rich Eq. 60. 

Under this section a judge of probate 
may sue on a guardian's bond without 
joining the wards as parties. Smith v. 
Moore, 109 S. C. 196, 95 S. E. 351. 

This sections does not prevent a pro- 
bate judge and the heirs of a deceased 
person from joining as co-plaintiffs in a 
suit on an administrator's bond. Mc- 
Corkle v. Williams, 43 S. C. 66, 20 S. E. 
744. But the distributees themselves may 
maintain an action on the bond without 
joining the probate judge as a party 
plaintiff. Kaminer v. Hope, 9 S. C. 253. 

Liquidating trustee of insolvent bank 
properly sues in own name as trustee. — 
By a divided court, it has been held that 
a director's action as liquidating trustee 
against a co-director for malfeasance is 
properly brought in the name of such 
director as liquidating trustee, rather 
than in the name of the corporation, in 
view of this section. Peeples v. Hornik, 
149 S. C. 40, 146 S. E. 680. And the cor- 
poration is not a necessary party to such 
action. Id. Nor need the director who 
is sued individually for malfeasance, be 
joined as a party plaintiff in his capacity 
as liquidating trustee. Id. 

As to power of directors to settle the 
affairs and collect the debts of a cor- 
poration after dissolution, see § 7710 of 
the Civil Code and note thereto. 

Substituted trustee may sue for undis- 



§ 399 



Code of Civil Procedure 



Page 240 



closed beneficiary. — "Where defendant 
entered contract of guaranty with trust 
company as trustee, but name of bene- 
ficiary of trust was undisclosed, the ben- 
eficiary being whoever might own bond 
secured by mortgage, the plaintiff, as 
substituted trustee, is entitled to bring 
suit on guaranty in foreclosure proceed- 
ings under this section, since he repre- 
sents owner of bond secured by mort- 
gage sought to be foreclosed. Mullally 
v. Garner Realty Co., 154 S. C. 401, 151 
S. E. 571. 

A commissioner in equity may sue in 
his own name, under this section, on a 
bond given to him for the benefit of 
others, although the bond has been 
turned over to his successor, the clerk 
of the court. Billings v. Williamson, 6 
S. C. 119. Although it probably is better 
practice to let the clerk in such case in- 
stitute the suit. Id. See also, Daniels 
v. Moses, 12 S. C. 130, 137; Clark v. 
Smith, 13 S. C. 585. 

Suits based upon standard mortgagee 
clause. — Under this section a mortgagor, 
on the refusal of the mortgagee to pro- 
ceed against the insurer under the stan- 
dard mortgage clause in a policy, has 
the right to bring an action against the 
mortgagee and the insurer to compel 
collection and application on the mort- 
gage. Walker v Queen Ins. Co., 136 S. 
C. 144, 134 S. E. 263, 52 A. L. R. 259, and 
the cases cited. 

Suit to enforce right of subrogation of 
insurance company is properly brought 
in name of insured. See this catchline 
under § 397, and cases treated thereun- 
der. 

Suit by administrator on note belong- 
ing to estate. — Where a decree showed 
that there was a final settlement of an 
estate, and that a note executed in favor 
of decedent belonged to the heirs, but a 
subsequent order showed that such set- 
tlement was not agreed upon by one cer- 
tain heir, to whom leave was granted 
to meet the administrators before the 
court and correct errors in the former 
settlement, the administrators may sue 
on said note for the benefit of those in- 
terested, in view of this section, since 
under such circumstances, it is not 
shown that the administrators have lost 



their interest in the note or their right 
to collect it. Hill v. Hill, 51 S. C. 134, 
28 S. E. 309. 

An action on a sealed note, payable 
to an administrator, may be instituted 
by the administrator, even though such 
note has been assigned, such suit being 
for the benefit of the assignee. Carroll 
v. Still, 13 S. C. 430. 

Lunatic sues in equity by committee. 
— A suit by a committee of a lunatic 
against the executors of the deceased 
committee for an account of profits is a 
suit by a trustee to recover profits due 
his cestui que trust, and may be main- 
tained by the committee without join- 
ing the lunatic as a party. Ashley v. 
Holman, 15 S. C. 97, 105. See, also, Cath- 
cart v. Sugenheimer, 18 S. C. 123. 

But an action at law must be in name 
of lunatic. See this catchline under § 
397. And see, also, Griffin v. Griffin, 20 
S. C. 486. 

And an action brought by attorneys in 
fact must set out the names of the real 
parties in interest. Wilson et al. v. 
Gibbes Machinery Co. et al., 189 S. C. 
426, 1 S. E. (2d) 490. 

The superintendent of the penitentiary 
may sue in his own name for the amounts 
due the state by a hirer of convicts, on 
account of the loss of those who were 
permitted to escape. Lipscomb v. Seegars, 
19 S. C. 425. 

Under this section the seller of lumber 
can maintain an action for the price 
without joining with him others among 
whom he had divided the order to sup- 
ply the lumber, under a custom of the 
trade by which the seller was not re- 
quired to pay such others unless he was 
able to collect. Folley & Co. v. Smith, 
103 S. C. 445, 88 S. E. 24. 

Suits against trustee. — A stranger to 
a trust may sue the trustee without join- 
ing the beneficiaries. Price v. Krasnoff, 
60 S. C. 172, 38 S .E. 413, 416. 

Applied in Buist v. Fitzsimmons, 44 S. 
C. 130, 21 S. E. 610. 

Cited in Palmetto Bank & Trust Co. 
v. McCown-Clark Co., 143 S. C. 98, 141 S. 
E. 155, 156; Matthews v. Cantey, 48 S. 
C. 588, 26 S. E. 894. 

See generally. Rowell v. Hyatt, 108 S. 
C. 300, 94 S. E. 113. 



$ 400. Action by and against married woman. — A married woman may 
sue and be sued as if she were unmarried: provided, that neither her hus- 
band nor his property shall be liable for any recovery against her in any 
such suit; but judgment may be enforced by execution against her sole 
and separate estate in the same manner as if she were sole. When the 
action is between herself and her husband, she may likewise sue or be 
sued alone. 

1932 Code, § 400; Civ. P. '22, § 357; Civ. P. '12, § 163; Civ. P. '02, § 135; 1870 (14) 
{ 137; 1925 (34) 263. 



Page 241 



Parties to Civil Action Generally 



§ 401 



As to joinder of causes of actions, see 
§ 487 and the note thereto. 

Editor's note. — It is interesting to note 
the evolution of the law concerning mar- 
ried women as parties. By the early 
common law the identity of a married 
woman was merged with that of her 
husband. She could not sue or be sued, 
neither could she be held on her con- 
tracts. The husband was liable for his 
wife's torts, and, in many cases, her less 
serious crimes. At a later stage she could 
sue and be sued if her husband was 
joined as a party. The first radical de- 
parture from the common law prin- 
ciples on this subject was made when 
this section was made to read, in terms, 
that when a married woman is a party, 
her husband must be joined with her, 
except in the instances therein provided 
for, and unless the particular case fell 
within one of the exceptions it was man- 
datory that the husband be joined with 
his wife. See Priester v. Southern Ry. 
Co., 151 S. C. 433, 149 S. E. 226. 

In 1925 the section was repealed and 
re-enacted to read as it now stands. The 
early cases cited hereunder may be read 
pnd considered in the light of the chang- 
es above referred to. 

— Tort action by wife against husband. — 
Wife may maintain a tort action against 
her husband for willfully beating her. 
Prosser v. Prosser, 114 S. C. 45, 102 S. 
E. 787, cited in Faris v. Hope 298 Fed. 
727, 730 and for injuries sustained in au- 
tomobile accident. Pardue v. Pardue, 
167 S. C. 129; 166 S. E. 101. 

Common-law liability of a husband for 
the torts of his wife committed by her 
without his participation has been ab- 
rogated by this statute and enactments 
of a similar nature. — Bryant v. Smith 
et ux„ 187 S. C. 453, 198 S. E. 20. "An 
analysis of the broad and comprehensive 
language of Sec. 400 shows that the leg- 
islature meant to complete the work of 



emancipation, and to give married wo- 
men all the rights and remedies possess- 
ed by unmarried women, and to subject 
them to all of the laws of the State, 
without reference to the marital rela- 
tion." Ibid. 

Husband is not exempted, however, 
from liability for his wife's torts in cases 
where he would be jointly responsible 
with her, if the marriage did not exist. 
Ibid. 

A complaint alleging that wife com- 
mitted assault and battery and that her 
husband instigated, urged, and abetted 
wife to make the assault, did not mis- 
join causes of action as against conten- 
tion that complaint stated cause of ac- 
tion against husband for merely being 
present at the assault. Ibid. 

Necessity of suing and defending by 
guardian or next friend. — In Hiers v. At- 
lantic Coast Line Ry. Co., 75 S. C. 311, 55 
S. E. 457, 9 Am. Cas. 1114, the phrase "in 
no case need she prosecute or defend by 
guardian or next friend" which was 
contained in this section prior to the 
amendment in 1925, was construed not 
to authorize an action by a married wo- 
man who is a minor. Her suit must be 
brought by a guardian ad litem. 

The above ruling was based upon the 
fact that the clause related to the dis- 
ability of coverture and not that of in- 
fancy. The quoted phrase was stricken 
from the section by the 1925 amendment. 
— Ed. note. 

Applied in Rogers v. Western Union 
Tel. Co., 72 S. C. 290, 51 S. E. 773; Sei- 
bels v. Northern Cent. Ry. Co., 80 S. C. 
133, 61 S. E. 435, 16 L. R. A. (N. S.) 1026; 
Ryder v. Jefferson Hotel Co., 121 S. C. 
72, 113 S. E. 474, 25 A. L. R. 739; Low- 
ry v. Jackson, 27 S. C. 318, 3 S. E. 473. 

See generally. Messervy v. Messervy, 
82 S. C. 559, 64 S. E. 753; Ross v. Linder, 
12 S. C. 592; Bannister v. Bull, 16 S. C. 
220. 



§ 401. Infants — action by and against. — When an infant is a party, he 
must appear by guardian, who may be appointed by the court in which the 
action is prosecuted, or by a judge thereof, or a judge of probate, clerk 
of court, or by a master in those counties where the office of master now 
or may hereafter exist. 

1932 Code, § 401; Civ. P. '22, § 358; Civ. P. '12, § 164; Civ. P. '02, § 136; 1870 (14) 
§ 138; 1879 (17) 32; 1898 (22) 688. 



Guardian ad litem settle actions, see 
section 409-3. 

See the section immediately following, 
and the note thereto. 

An infant must appear by guardian 
ad litem. Mitchell v. Cleveland, 76 S. C. 
432, 57 S. E. 33. 

And this is true though infant be mar- 
ried. — In Heirs v. Atlantic Coast Line 
Ry. Co., 75 S. C. 311, 55 S. E. 457, 458, 9 



Am. Cas. 1114, it is said that this section 
makes no exception as to infants who 
are married, and that it would be going 
too far for the court to undertake to do 
so. 

And presumption of authority of at- 
torney of record as to adults does not ap- 
ply as to infants. — In Jones v. Haile Gold 
Mining Co., 79 S. C. 47, 60 S. E. 35, 36, 
it is said that it will be presumed that 



§ 401 



Code of Civil Procedure 



Page 242 



an attorney of record had authority to 
represent an adult client, citing Sanders 
v. Price, 56 S. C. 1, 33 S. E. 731, but 
since by this section an infant can ap- 
pear only by guardian ad litem, this pre- 
sumption does not apply to an infant. 

Thus, a judgment against infant not 
represented by guardian is voidable. — 
It is error to render a judgment against 
an infant who is not represented by a 
guardian ad litem, in view of this sec- 
tion. In such case the judgment is void- 
able upon a proper proceeding and sat- 
isfactory showing for that purpose. Rob- 
ertson v. Blair, 56 S. C. 96, 34 S. E. 11, 
15, 76 Am. St. Rep. 543. But such judg- 
ment is not void. Id. 

The mere fact that the judgment was 
rendered against one who is a minor and 
not represented by a guardian ad litem 
will not of itself constitute ground for 
setting the judgment aside. Robertson 
v. Blair, 56 S. C. 96, 34 S. E. 11, 15, 76 
Am. St. Rep. 543. This is especially true 
where the rights of third parties have 
intervened. Id. 

In Haigler v. Way, 2 Rich. Law, 324, 
the court, after holding that a judgment 
obtained against an infant, who did not 
appear by guardian, is erroneous, goes 
on to say that the court is not bound, 
after the infant has attained his ma- 
jority, to set aside such a judgment upon 
the mere fact that he was an infant when 
it was obtained, but may consider lapse 
of time, the conduct of the defendant, 
and other circumstances as having con- 
firmed the judgment or rendered the in- 
terference of the court improper. Rob- 
ertson v. Blair, 56 S. C. 96, 34 S. E. 11, 
15, 76 Am. St. Rep. 543. 

And motion to vacate such judgment 



is proper method of attack. — A motion 
in a cause to vacate a judgment render- 
ed against an infant not represented by 
guardian ad litem is the proper method 
of attacking the judgment, where the 
record does not disclose the fact of in- 
fancy, or that he was not represented 
by a guardian ad litem. Robertson v. 
Blair, 56 S. C. 96, 34 S. E. 11, 76 Am. St. 
Rep. 543. 

And the motion in such case should be 
supported by affidavits showing the facts 
which do not appear of record. Robert- 
son v. Blair, 56 S. C. 96, 34 S. E. 11, 15, 
76 Am. St. Rep. 543. 

Judgment not vacated because clerk 
was appointed guardian ad litem. Mid- 
dleton v. Stokes, 71 S. C. 17, 50 S. E. 539. 

Probate judge may make appointment. 
— Under this section the guardian may 
be appointed by a probate judge on 
plaintiff's application, without any fur- 
ther notice, though the order of con- 
tinuance served on the infants and their 
father provided that the application 
might be to "this court," i. e., the court 
of common pleas, in which the action 
was pending. Lyles v. Haskell, 35 S. C. 
391, 14 S. E. 829. See also, Trapier v. 
Waldo 16 S. C. 276. 

And so may a magistrate. — Under this 
section and § 274, subd. 15, providing 
that the provisions of the Code as to 
actions shall apply to magistrate's courts, 
a magistrate has power to appoint a 
guardian ad litem in a suit in his court. 
Wideman v. Patton, 64 S. C. 408, 42 S. 
E. 190. 

A void appointment by the clerk may 
be validated by order of court. Ex parte 
Pearson, 79 S. C. 302, 60 S. E. 706. 



§ 402. Guardian — how appointed. — The guardian shall be appointed as 
follows: 

(1) When the infant is plaintiff, upon the application of the infant, if he 
be of the age of fourteen years; if under that age, upon the application of his 
general or testamentary guardian, if he has any, or of a relative or friend 
of the infant; if made by a relative or friend of an infant, notice thereof 
must first be given to such guardian, if he has one; if he has none, then 
to the person with whom such infant resides. 

(2) When the infant is defendant, upon the application of the infant, if 
he be of the age of fourteen years, and apply within twenty days after the 
service of the summons. If he be under the age of fourteen, or neglect so to 
apply, then upon application of any other party to the action, or of a 
relative or friend of the infant, after notice of such application being first 
given to the general or testamentary guardian of such infant, if he has 
one within this State; if he has none, then to the infant himself, if over 
fourteen years of age, and within the State; or, if under that age, and with- 
in the State, to the person with whom such infant resides. And in an 
action for the partition of real property, or for the foreclosure of a mort- 
gage or other instrument, or any other case affecting real estate in which 



Page 243 



Parties to Civil Action Generally 



§ 402 



an infant has an interest, when an infant defendant resides out of the 
State or is temporarily absent therefrom, the plaintiff may apply to the 
court in which the action is pending, or to a judge, clerk or master there- 
of, and will be entitled to an order designating some suitable person 
to be the guardian of the infant defendant for the purpose of the action, 
unless the infant defendant, or some one in his behalf, within a number of 
days after the service of a copy of the order, which number of days shall 
be in the said order specified, shall procure to be appointed a guardian ad 
litem for the said infant; and the court or officer appointing shall give 
special directions in the order for the manner of the service thereof, which 
may be upon the infant. And in case the infant defendant, having an in- 
terest in the events of the action, shall reside in any State with which 
there shall not be a regular communication by mail, on such fact satis- 
factorily appearing to the court, the court may appoint a guardian ad litem 
for such absent infant party, for the purpose of protecting the right of 
such infant in said action, and on such guardian ad litem process, pleadings 
and notices in the action may be served in the like manner as upon a party 
residing in the State. 

1932 Code, § 402; Civ. P. '22, § 359; Civ. P. '12, § 165; Civ. P. '02, § 137; 1870 (14) 
§ 139; 1912 (27) 623. 



Guardian ad litem settle actions, see 
section 409-3. 

Insane person appear by, see § 409-1. 

Persons imprisoned appear by, see § 
409-2. 

As to necessity of appointment of 
guardian, and the effect where there is 
an irregularity in the appointment, see 
the preceding section and note thereto. 

Full compliance necessary to court's 
jurisdiction. — No jurisdiction of the per- 
sons of infants can be obtained except 
by exact compliance with the require- 
ments of this section. Finley v Robert- 
son, 17 S. C. 435; Riker v. Vaughn, 23 
S. C. 187; Tederall v. Bouknight, 25 S. 
C. 275. 

Evidential value of compliance with 
section. — Full compliance with this sec- 
tion will be considered by the court in 
upholding the presumption in a collat- 
eral proceeding that the court would not 
have acted in ordering and confirming a 
sale in partition against a minor defend- 
ant, without the existence of an order for 
publication even though such order is 
not in the judgment roll where good 
practice would place it. Fleming v. 
Chappell, 118 S. C. 290, 110 S. E. 148. 

Proper applicant for appointment. — 
A mother of infant defendants under 14 
years of age is a proper person to apply 
for the appointment of a guardian ad 
litem for them, under subd. 2 of this sec- 
tion, where it does not appear that they 
have a general or testamentary guar- 
dian, or that they reside apart from her; 
and she need not wait until the expira- 
tion of 20 days after service of sum- 
mons on them. Easterby v. Mcintosh, 
51 S. C. 393, 29 S. E. 87. 

Premature appointment is a mere Ir- 



regularity. — Under subd. 2 of this sec- 
tion, where an application was made by 
another on behalf of an infant defend- 
ant over 14 years old, the fact that it 
was made before expiration of the 20 
days was only an irregularity, which was 
cured by the judgment, where the in- 
fants signed the answer with their guar- 
dian ad litem, who was appointed on 
said application. Eastery v. Mcintosh, 
51 S. C. 393, 29 S. E. 87. See, also, Mid- 
dleton v. Stokes, 71 S. C. 17, 50 S. E. 539, 
holding that for mere irregularity in the 
appointment, the decree will not be set 
aside. 

Notice to appear and plead is equiv- 
alent to notice of necessity of appoint- 
ment of guardian. — Under this section, 
where infant defendants have no gen- 
eral or testamentary guardian, notice to 
them, and their father, with whom they 
resided, to appear and answer the com- 
plaint, is substantially a notice that they 
should have a guardian ad litem to en- 
able them to do so, and in default there- 
of that the plaintiff will proceed to have 
a guardian appointed, and is a sufficient 
notice. Lyles v. Haskell, 35 S. C. 391, 14 
S. E. 829, 832. 

Service of process upon infants. — Ju- 
risdiction of a minor under fourteen is 
obtained by service on her father of 
summons and complaint, and acceptance 
by him, her general guardian, of service 
of the summons and complaint, and no- 
tice of appointment of guardian ad litem 
is sufficient, although she resides with 
another, and the appointment of guar- 
dian ad litem is upon petition of her 
father. Barrett v. Moise, 61 S. C. 569, 
39 S. E. 755. 



§ 403 



Code of Civil Procedure 



Page 244 



§ 403. Who may be plaintiffs. — All persons having an interest in the sub- 
ject of the action, and in obtaining the relief demanded, may be joined as 
plaintiffs, except as otherwise provided in this title. 

1932 Code, § 403; Civ. P. '22, § 360; Civ. P. '12, § 166; Civ. P. '02, § 138; 1870 (14) 
§ 140. 



As to necessity that suit be prosecuted 
by real party in interest, see § 397 and 
the note thereto. 

Section permits joinder of causes. — 
Where the manager and director of a 
corporation by means of fraudulent mis- 
representations as to the financial con- 
dition of the corporation induced the 
stockholders to sell their shares for less 
than their value, the wrong to them is in 
the nature of a joint wrong, and the de- 
frauded stockholders may under this 
section join in an action to require the 
manager to account for the profits made 
in the transaction. Black v. Simpson, 
94 S. C. 312, 77 S. E. 1023, 46 L. R. A. 
(N. S.) 137. See, also, Roberts v. Johns, 
10 S. C. 101; Hellams v. Switzer, 24 S. C. 
39. 

For full treatment of subject of joinder 
of causes of action, see § 487 and note 
thereto. 

Under this section a husband and wife 
may join in an action ex contractu for 
loss of baggage, consisting of articles be- 
longing to each. Park v. Southern Ry. 
Co., 78 S. C. 302, 58 S. E. 931. 

A bill against a guardian by four 
wards, all children of the same parents, 
praying for an account, the removal of 
the guardian, and general relief, is not 
demurrable on the ground of multifari- 
ousness. Stallings v. Barrett, 26 S. C. 
474, 2 S. E. 483, followed in Lide v. 
Burn, 141 S. C. 476, 141 S. E. 365. 



Under this section and § 406, the three 
causes of action of the assignees of 
bonds, given as part payment of pur- 
chase price of land sold in partition, 
payment of which was defaulted, to re- 
cover judgment thereon and to fore- 
close the mortgage securing the bonds, 
were not misjoined in one action, on the 
ground that all the plaintiffs were not 
united in interest in each of the bonds. 
Turner v. Clark, 109 S. C. 132, 95 S. E. 
334. 

And plaintiffs need not be "united in 
interest." — The court in Turner v. Clark, 
109 S. C. 132, 95 S. E. 334, said that it 
is to be noted that this section does not 
use the phrase that the plaintiffs must 
be "united in interest" in the subject 
of the action or in the relief demanded, 
but it says "all parties having an inter- 
est" therein, which means any interest 
therein. Of course, that means such an 
interest, legal or equitable, as would 
make them proper parties to the action. 

As to necessity of parties being joined 
when they are "united in interest," see 
§ 406 and note thereto. 

Nor need all parties having an inter- 
est be joined. — Under this section an ac- 
tion may be maintained without join- 
ing all parties having an interest. La- 
mar v. Croft, 73 S. C. 407, 53 S. E. 540, 
following McCorkle v. Williams, 43 S. C. 
66. 20 S. E. 744. 

Consolidation of actions. — Sons v. 
Bank, 170 S. C. 548; 171 S. E. 35. 



§ 404. Who may be defendants. — Any person may be made a defendant 
who has or claims an interest in the controversy adverse to the plaintiff, or 
who is a necessary party to a complete determination or settlement of the 
questions involved therein, and in an action to recover the possession of 
real estate, the landlord and tenant thereof may be joined as defendants; 
and any person claiming title or a right of possession to real estate may 
be made parties plaintiff or defendant, as the case may require, to any 
such actions. 

1932 Code, § 404; Civ. P. '22, § 361; Civ. P. '12, § 167; Civ. P. '02, § 139; 1870 (14) 
§ 141. 



Cross references. — For numerous illus- 
trations of what are actions for the re- 
covery of real property, see § 374 and 
the note thereto. As to rendition of 
judgment against one or more defend- 
ants to action, see § 657 and the note 
thereto. 

This section is permissive, instead of 
being mandatory. Marion County Lum- 
ber Corp. v. Whipple, 118 S. C. 90, 110 S. 



E. 70, approving Murray Drug Co. v. 
Harris, 77 S. C. 410, 57 S. E. 1109; 
Graham v. Alliance Ins. Co. et al., 192 
S. C. 370, 6 S. E. (2d) 754. 

Person, to be made a party defandant 
to an action, must have an interest con- 
trary to claim which is the foundation 
of plantiff's action. Bomar v. City of 
Spartanburg. 181 S. C. 453; 187 S. E. 



Page 245 



Parties to Civil Action Generally 



§ 404 



921; Medical Soc. of S. C. v. Huger, 185 
S. C. 137; 193 S. E. 642. 

The naming of parties defendant is 
within the trial court's discretion. — 

Cleveland v. City of Spartanburg, 185 S. 
C. 373; 194 S. E. 128. 

And the bringing in new parties is 
discretionary with court. — Under this 
section and § 409, the power to bring in 
new parties is entirely within the dis- 
cretion of the circuit judge. Marion 
County Lumber Corp. v. Whipple, 118 
S. C. 90, 110 S. E. 70 and the authorities 
therein cited. See also, Fidelity Fire Ins. 
Co. v. Windham, 134 S. C. 373, 133 S. E. 
35. And this is true in suits in equity. 
People's Bank of Hartsville v. Bryant, 
148 S. C. 133, 145 S. E. 692, 694. 

Which means "legal discretion." — The 
"discretion" referred to in the decisions 
on this point means "legal discretion," 
and an abuse thereof is reviewable. Fi- 
delity Fire Ins. Co. v. Windham, 134 S. 
C. 373, 133 S. E. 35, 39. 

But only parties affected may com- 
plain of alleged improper exercise 
thereof. — Where certain defendants do 
not complain of an order retaining them 
as defendants, other defendants who ap- 
peal the cause, are not entitled to com- 
plain that the first-mentioned defend- 
ants were so retained. People's Bank of 
Hartsville v. Bryant, 148 S. C. 133, 145 S. 
E. 692. 

One who could not be injured by a 
misjoinder of causes of action cannot be 
heard to complain thereof. Robinson v. 
McMaster, 108 S. C. 384, 94 S. E. 879. 

Section has been liberally construed. 
— This section has been liberally con- 
strued for the purpose of bringing be- 
fore the court all parties who may be 
necessary to a complete determination 
or settlement of all questions in the 
action. People's Bank of Hartsville v. 
Bryant, 148 S. C. 133, 145 S. E. 692, 694; 
Graham v. Alliance Ins. Co. et al., 192 S. 
C. 370, 6 S. E. (2d) 754. 

In Mordecai v. Canty, 86 S. C. 470, 68 
S. E. 1049, it is said: "When jurisdiction 
of a subject-matter is conferred upon the 
court, the power to bring before it all 
necessary and proper parties for the de- 
termination of the matter follows as an 
incident to the jurisdiction," quoted in 
Fidelity Fire Ins. Co. v. Windham, 134 
S. C. 373, 133 S. E. 35, 39. 

And this is particularly true when the 
action relates to the foreclosure of a real 
estate mortgage. People's Bank of 
Hartsville v. Bryant, 148 S. C. 133. 145 
S. E. 692, 694. 

Suit to foreclose mortgage on ground 
that trustee holding mortgage for plain- 
tiff's benefit, pursuant to conspiracy with 
trustee's father subsequently acquiring 
mortgaged land, fraudulently satisfied 
mortgage of record without any consid- 
eration to plaintiff, states a joint cause 



of action under state law against both 
defendants, so as to prevent removal to 
federal court by alleged trustee. Mc- 
Cown v. Williams, et al., 10 F. S. 168. 

In actions for foreclosure, a party in 
possession, claiming title to land, was 
properly made a party defendant. Sale 
v. Meggett, 25 S. C. 72. 

In Robinson v. McMaster, 108 S. C. 
384, 94 S. E. 879, it is held that subse- 
quent mortgagees or lienors were proper 
parties to an action to foreclose a prior 
mortgage. 

The title to property, real or personal, 
sold under the order of the court of 
equity, should be clear and free, not only 
for the purpose of giving the purchaser 
at such sale good title, but for the fur- 
ther purpose of making the property 
bring its real worth at the sale. It is 
always better, therefore, for the court 
to have before it, in any action where 
the sale of property is sought, any and 
all persons who have, or may claim to 
have, any interest in the property. Peo- 
ple's Bank v. Bryant, 148 S. C. 133, 145 
S. E. 692, 694. 

In action to foreclose mortgage and 
recover on note relating to mortgage in- 
debtedness, it is not error to retain as 
defendant the original owner of mort- 
gage who was plaintiff's assignor, not- 
withstanding that no affirmative relief 
could be obtained against her. People's 
Bank v. Bryant, 148 S. C. 133, 145 S. E. 
692. 

Persons who cancelled mortgage upon 
execution of deeds to his wife in belief 
no other liens existed against property 
was properly made party defendant in 
foreclosure action instituted by holder 
of another mortgage. Maxwell v. Epton, 
177 S. C, 184; 181 S. E„ 16. 

And has for its purpose the preven- 
tion of multiplicity of suits. — In Miller 
& Barnhardt v. Ins. Co., 132 S. C. 78, 
129 S. E. 131, it was sought to bring in, 
as a party defendant, the sheriff, whose 
bondsman was being sued. The Supreme 
Court reversed an order refusing the 
motion, and declared: "It occurs to us 
that every conceivable ground was pres- 
ent to induce the conclusion that the 
bringing in of the sheriff as a party de- 
fendant was just, reasonable, and in line 
with the policy of the law 'to prevent a 
multiplicity of suits and that there may 
be a complete and final decree between 
all parties interested,' certainly 'a con- 
summation devoutly to be wished.' a 
desirable result." Peurifoy v. Mauldin, 
142 S. C. 7, 140 S. E. 253, 255. Anderson 
County v. Griffin et al., 164 S. C. 75, 161 
S. E. 875. 

Illustrations. — The courts of this state 
have applied the foregoing general prin- 
ciples in various kinds of cases. The fol- 
lowing authorities will illustrate the 
application of these rules. — Ed. note. 



§ 404 



Code of Civil Procedure 



Page 246 



Suit to settle partnership estate. — 

Under this section any one holding or 
claiming an interest in partnership as- 
sets is a necessary party to a suit to set- 
tle the parnership estate. Wagner v. 
Sanders, 49 S. C. 192, 27 S. E. 68, 70. 

Establishment of several liability of 
stockholders. — In Parker v. Carolina 
Savings Bank, 53 S. C. 583, 31 S. E. 673, 
69 Am. St. Rep. 888, the court held that 
equity had jurisdiction to bring in all 
the stockholders of an insolvent bank 
and establish their several liabilities in 
one suit. 

In a suit to marshal the assets of mu- 
tual insurance companies, and to ascer- 
tain the debts of the companies and the 
resulting liabilities of the members, the 
court has the power under this section to 
make all the members of the company 
parties defendant. Wetmore v. Scalf, 85 
S. C. 285, 67 S. E. 298, 300. 

The heir at law or devisee in, or claim- 
ing to be in, actual and exclusive pos- 
session of the real estate of a deceased 
debtor has such "an interest in the con- 
troversy adverse to the plaintiff credi- 
tor" under this section as entitles him 
to be joined as a proper party defendant 
in an action by such creditor against 
the personal representative. Tolbert v. 
Roark, 126 S. C. 207, 119 S. E. 571, 574. 

Sue sureties on county officer's bond 
in one action. — In a suit against a pres- 
ent or former county treasurer for an 
accounting in equity for breaches of 
trust and defalcations occurring in two 
terms of offices, where the sureties for 
the several terms are different sureties, 
all the sureties can be made parties to 
the one action. Anderson County v. 
Griffin et al., 164 S. C, 75, 161 S. E., 875. 

Surety sued by employer on bond ex- 
ecuted by it to protect employer from 
shortage of employer's employees, who 
agreed to protect surety from loss, may 
bring employees allegedly short in as 
defendants. C. C. Pearce & Co. v. Ab. 
Surety Co. of N. Y., 173 S. C, 77; 174 S. 
E. 902. 

Surety may bring in co-surety. — Un- 
der this section a surety is entitled to 
bring in as a defendant another surety 
to which it alleged misappropriated 



funds and securities were delivered as 
indemnity. Peurifoy v. Mauldin, 142 S. 
C. 7, 140 S. E. 253, and the authorities 
therein cited. 

Tenant may bring in his co-tenants. — 
Under this section a tenant has the right 
to make all his co-tenants parties to an 
action to recover possession of his inter- 
est in a tract of land. Whitaker v. Man- 
son, 84 S. C. 29, 65 S. E. 953, 955, 137 
Am. St. Rep. 835. 

Grantee of co-tenant necessary party 
in partition proceedings. Ex parte Union 
Mfg. & Pr. Co., 81 S. C. 265, 62 S. E. 
259, 128 Am. St. Rep. 908. 

A joint action upon a joint and several 
bond, by two obligors, may be brought 
against the surivor of them and the ex- 
ecutor of the deceased one. Trimmier 
v. Thomson, 10 S. C. 164; Susong v. Vai- 
den, 10 S. C. 247, 30 Am. Rep. 50; Wie- 
senfeld v. Byrd, 17 S. C. 106. 

Parties in action for death by wrong- 
ful act. — By a divided court, it was held 
in Lytle v. Southern Ry. -Carolina Divis- 
ion, 152 S. C. 161, 149 S. E. 692, that in an 
action by legal representative for wrong- 
ful death of employee for the benefit 
of deceased's mother, where there was 
no father or children and where woman 
married to deceased had deserted him 
without cause and eloped with adulter- 
er, defendant railroad will be allowed 
to have widow of deceased made a party 
to avoid possibility of double recovery 
under this section and section 409. 

For full discussion of subject of par- 
ties to action for death by wrongful act, 
see § 412 and the note thereto. 

Personal representatives and grantees 
of a decedent are proper parties in ac- 
tion to marshall his assets and set aside 
conveyances as fraudulent. Sheppard 
v. Green, 48 S. C. 165, 26 S. E. 224. 

The city council, mayor, commission- 
ers, and city clerk and treasurer were 
not necessary parties to an action to en- 
join the city and its tax collector from 
selling property of plaintiff in order that 
a paving assessment might be collected. 
Cleveland v. City of Spartanburg, 185 
S. C. 373; 194 S. E. 128. 

Tax actions. — See section 2808 and 
notes thereunder. 



§ 405. State may be defendant in action affecting title to real estate — 
service of process. — In any action or suit at law affecting the title to real 
estate and when it appears that the state of South Carolina has or claims a 
judgment lien upon said real estate, the state of South Carolina may be 
made a party defendant in such action or suit at law: provided, no money 
demand is made in such suit or action at law against the state of South 
Carolina. Service of the summons and complaint in such action or suit 
at law upon the attorney general of the state of South Carolina will be 
sufficient service upon the state of South Carolina. 

1932 Code, § 405; 1926 (34) 963. 

Consolidation of Actions.— Sons v. Bank, 170 S. C, 548; 171 S. E., 35. 



Page 247 



Parties to Civil Action Generally 



§ 406 



§ 406. One or more may sue or defend for all. — Of the parties to the 
action, those who are united in interest must be joined as plaintiffs or 
defendants; but if the consent of any one who should have been joined as 
plaintiff cannot be obtained, he may be made a defendant, the reason 
thereof being stated in the complaint; and when the question is one of a 
common or general interest of many persons, or when the parties are very 
numerous and it may be impracticable to bring them all before the court, 
one or more may sue or defend for the benefit of the whole. 

1932 Code, § 406; Civ. P. '22, § 362; Civ. P. '12, § 168; Civ. P. '02, § 140; 1870 (14) 
§ 142. 



Scope of the section. — Analysis of this 
section shows that it provides that one 
or more persons may sue for the benefit 
of the whole in either of two separate 
conditions: first, when the question in 
the cause is one of common or general 
interest to many persons; or, second, 
where the parties are united in interest, 
but are very numerous, and it may be 
impracticable to bring them all before 
the court. Whitaker v. Manson, 84 S. 
C. 29, 65 S. E. 953, 954, 137 Am. St. Rep. 
835. 

This section is discussed at length in 
Pom. Code Remedies, wherein it is said: 
"The construction of this section of the 
Code has been established by the courts, 
and the rule is settled, as already stated, 
that, where the question to be decided 
is one of common or general interest, to 
a number of persons, the action may be 
brought by or against one for all the oth- 
ers, even though the parties are not so 
numerous that it would be impracticable 
to join them all as actual plaintiffs or 
defendants; but, on the other hand, 
when the parties are so very numerous 
that it is impracticable to bring them all 
into court, one may sue or be sued for 
all the others, even though they have 
no common or general interest in the 
questions at issue; and the necessary 
facts to bring the case within one or the 
other of these conditions must be 
averred," approved in Faber v. Faber, 
76 S. C. 156, 56 S. E. 677, 679, 11 Ann. 
Cas. 780. 

And its purpose stated. — The design of 
the last portion of this section was to 
provide a mode of obtaining a complete 
determination of the rights of the parties 
in cases where the number is so great as 
to make it impracticable to bring them 
all in by actual service. Whitaker v. 
Manson, 84 S. C. 29, 65 S. E. 953, 955, 137 
Am. St. Rep. 835. See also, Stemmer- 
mann v. Lilienthal, 54 S. C. 440, 32 S. E. 
535. 

Reason underlying the section. — The 
reason for this rule is thus stated in 
Smith v. Swormstedt, 16 How. (U. S.) 
288, 303, 14 L. Ed. 942: "Where the par- 
ties interested in the suit are numerous, 
their rights and liabilities are so sub- 
ject to change and fluctuations, by death 



or otherwise, that it would not be pos- 
sible without very great inconvenience 
to make all of them parties, and would 
oftentimes prevent the prosecution of 
the suit to a hearing. For convenience, 
therefore, and to prevent a failure of 
justice, a court of equity permits a por- 
tion of the parties in interest to repre- 
sent the entire body, and the decree 
binds all of them the same as if all were 
before the court." Faber v. Faber, 76 S. 
C. 156, 56 S. E. 677, 679, 11 Ann. Cas. 
780. 

Theory. — "The doctrine of virtual rep- 
resentation is based upon the theory 
that there is some party before the 
court whose interests in the issue to be 
decided are so identical with, or so close- 
ly similar to, the interests of the absent 
person, that in protecting his own inter- 
ests the representative party will bring 
forward such matter and take such ac- 
tion that, as a necessary by-product, the 
court will have before it an adequate 
presentation of the interests which the 
absent person has in common with him." 
30 Illinois Law Rev. 581; and see Bofil 
v. Fisher, 24 S. C. Eq. 1; Faber v. Faber, 
76 S. C. 156, 56 S. E. 677, 11 Ann. Cas. 
780. 

Failure to make any members of the 
class parties, where it was practical to 
do so, is fatal, even though some of the 
parties had similar interests with the 
absent class. Moseley v. Hankinson, 22 
S. C. 323. 

Section applies at law and in equity. — 
This provision applies to legal as well 
as equitable action; but does not abolish 
entirely the common law requirements 
in legal actions for torts. Hellams v 
Switzer, 24 S. C. 39; Himes v. Jarrett, 
26 S. C. 480, 2 S. E. 393. 

Power of one to sue or defend for all 
rests in discretion of court. — In the case 
of Smith v. Williams, 166 Mass. 510, 512, 
it is said: "How far such persons should 
be made parties to the suit depends 
largely upon the discretion of the court, 
considering, on the one hand, the diffi- 
culty and expense of joining them, and, 
on the other, the paramount importance 
of having such a representative of the 
interests concerned as may enable the 
quesion at issue to be fairly tried." Quot- 



§ 406 



Code of Civil Procedure 



Page 248 



ed in Faber v. Faber, 76 S. C. 156, 56 S. 
E. 677, 679, 11 Ann. Cas. 780. 

The first clause of this section is man- 
datory. Murray Drug Co. v. Harris, 77 
S. C. 410, 57 S. E. 1109. 

Authority of plaintiff to sue for others 
need not be alleged. — Where several 
members of a voluntary beneficial as- 
sociation sue for themselves and the oth- 
er members to recover property of the 
association, the complaint need not al- 
lege the authority of plaintiffs to sue. 
Stemmermann v. Lilienthal, 54 S. C. 440, 
32 S. E. 535. 

Unity of interest is necessary for rule 
to apply. — "The parties thus represented 
by the plaintiff or defendant may not 
be in privity with each other, but there 
must be some bond of connection which 
unites them all with the question at 
issue in the action. The test would be 
to suppose an action in which all the nu- 
merous persons were actually made 
plaintiffs or defendants, and if it could 
be maintained in that form, then one 
might sue or be sued on behalf of the 
others; but, if such an actual joinder 
would be improper, then the suit by or 
against one as a representative would 
be improper, notwithstanding the per- 
mission contained in this section of the 
statute." Pom. Code Remedies. Ap- 
proved in Faber v. Faber, 76 S. C. 156, 

56 S. E. 677, 679, 11 Ann. Cas. 780. 
One who asserts distinct claim, pe- 
culiar to himself, cannot join other cred- 
itors or claimants with him. Warren v. 
Raymond, 17 S. C. 163. 

A person is not "united in interest" 
within the meaning of this section and 
does not have to be made a party de- 
fendant in an action relating to the sale 
of mercantile stocks in bulk, brought by 
creditors against the purchaser and sell- 
er to recover the goods at their value, 
unless it appear that he contributed to 
the capital stock, or has participated in 
the profits of the firm, or that there was 
a mutual agency between him and an- 
other in the conduct of the business. 
Murray Drug Co. v. Harris, 77 S. C. 410, 

57 S. E. 1109. 

And if there is identity of parties and 
identity of causes of action then rule of 
res judicata applies. — Where an action is 
brought by one taxpayer in behalf of all, 
and later another taxpayer institutes 
an action in behalf of all taxpayers, 
there is identity of parties within the 
rule of res judicata, in view of the in- 
stant section. Davis v. Town of West 
Greenville, 147 S. C. 448, 145 S. E. 193. 

In the case of Johnston-Crews v. Folk, 
118 S. C. 470, 111 S. E. 15, it is said: "If 
the identity of the parties and the iden- 
tity of the causes of action have been es- 
tablished, the former adjudication is 
conclusive, not only of the precise issues 



raised and determined, but of such as 
might have been raised affecting the 
main issue." Davis v. Town of West 
Greenville, 147 S. C. 448, 145 S. E. 193. 

Infant remaindermen who are not 
made parties are not bound by the judg- 
ment.— Mitchell v. Cleveland, 76 S. C. 
432, 57 S. E. 33. But the judgment is 
binding on all parties who stand out. 
State v. C. & L. R. Co., 13 S. C. 290. 

Illustrations. — The following cases will 
illustrate the application of the rule 
embraced in this section. — Ed note. 

Under this section a few members of 
a voluntai'y beneficial association, the 
membership of which is over 200, may 
sue for themselves and all the other 
members, on the treasurer's bond, to 
recover the amount of a defalcation. 
Stemmermann v. Lilienthal, 54 S. C. 440, 
32 S. E. 535. 

Joinder of assignee in enforcement of 
mortgages. — Under this section, the as- 
signees of bonds and mortgages given in 
part payment of land sold in partition, 
may join in the enforcement of such 
bonds and mortgages after payment has 
been defaulted, and such joinder will not 
constitute a misjoinder of actions. Tur- 
ner v. Clark, 109 S. C. 132, 95 S. E. 334. 

One legatee may defend for all. — 
This section authorizes the interests of 
the remote residuary legatees when the 
class consists of numerous persons, some 
within the jurisdiction of the court and 
some without, to be adjudicated in an 
action against them by making one 
member of the class a party defendant 
to represent the class. Faber v. Faber, 
76 S. C. 156, 56 S. E. 677, 11 Ann. Cas. 
780. See also, as to remaindermen not 
in esse, the cases of Bernard v. Bernard, 
79 S. C. 364, 60 S. E. 700, 128 Am. St. 
Rep. 852; Hunt v. Gower, 80 S. C. 80, 
61, S. E. 218, 128 Am. St. Rep. 862. 

One co-tenant may sue for himself 
and his co-tenants. — Under this section 
one co-tenant may sue for himself and 
in behalf of the other co-tenants deriv- 
ing title from the common source, 
where it is impracticable to bring them 
all before the court because of their 
number. Whitaker v. Manson, 84 S. C. 
29, 65 S. E. 953, 137 Am. St. Rep. 835. 

It was held in the case of Bannister v. 
Bull, 16 S. C. 220, 229, that the words 
"one or more to sue for the benefit of 
others," in the Code, does not apply to 
co-tenants, "but were manifestly intend- 
ed for creditors of an insolvent estate, 
and cases of that character, where the 
interest is in common. They (co-tenants) 
may be said, in one sense, to have a com- 
mon interest. * * * They have inter- 
ests in the same property while it re- 
mains undivided, but such interests are 
distinct. Each has a right to the extent 
of his share." Wilson v. Kelly, 30 S. C. 
483, 9 S. E. 523, 525. 



Page 249 



Parties to Civil Action Generally 



§ 407 



The Whitaker case, supra, discussed 
fully the ruling made in the Bannister 
case, and held that it did not conflict 
with the Whitaker decision. The ques- 
tion before the court in the Bannister 
case was whether the instant section 
forbade one tenant in common to sue 
to recover possession of his interest in 
the land unless he joined all the co-ten- 
ants as plaintiffs. The court in the Whit- 
aker case said that the only point decid- 
ed in the Bannister case was that co- 
tenants have no common or general in- 
terest as making all of them necessary 
parties to a suit instituted by any one 
or more for the recovery of land. The 
Bannister case does not decide that ten- 
ants in common do not fall under the 
last clause or condition of this section. 
Neither is the case of Wilson v. Kelly, 30 
S. C. 483, 9 S. E. 523, authority for that 
proposition. — Ed. note. 

Action against receiver and single 
stockholder of insolvent bank. — An ac- 
tion by single creditor against receiver 
and stockholder of an insolvent bank for 
his debt is defective for want of parties; 
it should be brought by plaintiff on be- 
half of himself and other creditors. Ter- 
ry v. Calnan, 4 S. C. 508, 514. And it 
should be against all the stockholders, 
and not one alone. Terry v. Martin, 10 
S. C. 263. 

Proceeding by an heir to adjust ad- 
vancement to distributees is not a "suit." 
— An action by one of the heirs and dis- 
tributees of a decedent against the oth- 
ers, brought to effect a sale of the land 
in lieu of a partition in specie, to adjust 
advancements to distributees, and to set- 
tle administration accounts, is not a suit 
within the meaning of this section, and 
therefore plaintiff's attorney cannot be 
compensated out of the common fund, 
through his services have inured to the 
benefit of all. Wilson v. Kelly, 30 S. C. 
483, 9 S. E. 523. 



Class suit by depositors suing on be- 
half of themselves and other creditors 
of insolvent bank is authorized. Hern- 
len v. Vandiver, 145 S. C. 412, 143 S. E. 
222, 227. 

As is suit by several teachers on be- 
half of 221, to force payment of salaries; 
and court will fix reasonable attorney's 
fee, payable out of the fund recovered. 
Faile et at., v. Clyburn, Superintendent 
of Education, et al., 169 S. C. 355; 168 S. 
E. 732. 

Discovery not permitted to ascertain 
whether class exists. — In proceeding in- 
volving liquidation of building and loan 
association, intervening claimants who 
allegedly overpaid their mortgage in- 
debtedness to association properly de- 
nied permission to examine books of as- 
sociation for purpose of ascertaining if 
there were others who might claim to 
be creditors of same class, and right to 
represent such others as a class, since 
others of same class were not necessary 
to be represented to enable interven- 
ing claimants to enforce their claims. 
Earle v. Webb. 182 S. C. 175; 188 S, E. 
798. 

Judgment res judicata as to absent 
members of class. — Where petitioners for 
themselves and others similarly situated 
sought to have statute relating to pri- 
mary election in city of Sumter invali- 
dated, judgment thereon was res judi- 
cata in subsequent proceeding against 
same defendants by other voters to have 
statute invalidated. Evans et al., v. 
Creech, Mayor, et al., 187 S. C. 371; 197 
S. E. 365. 

Names and ages of heirs, on whose be- 
half suit was alleged to be brought, will 
be required to be set out, on motion to 
make complaint more definite and cer- 
tain in that particular. Wilson et al., v. 
Gibbes Machinery Co., et al., 189 S. C. 
426, 1 S. E. (2d) 490. 



§ 407. One action against the different parties to bills and notes and other 
obligations. — Persons severally liable upon the same obligation or instru- 
ment, including the parties to bills of exchange and promissory notes may 
all, or any of them, be included in the same action, at the option of the 
plaintiff. 

1932 Code, § 407; Civ. P. '22, § 363; Civ. P. '12, § 169; Civ. P. '02, § 141; 1870 (14) 
§ 143. 

Section tends to prevent multiplicity 
of suits. — The court in Georgian Co. v. 
Britton, 141 S. C. 136, 139 S. E. 217, 218, 
construing this section, said that the 
present policy of the courts of this state 
is, and should be, against a muliplicity 
of actions. 

Guarantor and principal debtor may 
be sued together. — Under this section an 
absolute guarantor and the principal 
debtor, either of whom may be sued 



first, may at the option of the plaintiff 
be sued together. Georgian Co. v. Brit- 
ton, 141 S. C. 136, 139 S. E. 217. 

Holder need not sue indorser and 
maker of note together. — Folk v. Felder. 
Same v. Felder et al., 168 S. C. 103, 167 
S. E. 27. 

Sufficiency of allegations of liability. — 
This section was cited in McCrae v. 
Spires, 121 S. C. 147, 113 S. E. 583, in 
support of the holding that an allegation 



§ 407 



Code of Civil Procedure 



Page 250 



that a specified sum on the notes became 
due and payable "by defendants to 
plaintiff" on a certain day is sufficient, 
as equivalent to a general allegation of 
due performance on plaintiffs part of 
all conditions precedent to fixing liabili- 
ty of such defendants as indorsers. 

Suit on sheriff's bond. — Sheriff and 
his deputy not "necessary parties" in 
suit on sheriffs bond, which liability is 
joint and several. McAlister v. Fidelity 



& Deposit Co., of Maryland, 37 F. S. 956. 
See also, Hartfield v. Kennedy, 1 Bay 
501; State v. Williams, 19 S. C. 62; State 
v. Fidelity & Deposit Co., 114 S. C. 511, 
104 S. E. 182; Cohen v. Casualty Co., 4 F. 
(2d) 564. 

See generally. Trimmier v. Thomson, 
10 S. C. 164; Susong v. Vaiden, 10 S. C. 
247, 30 Am. Rep. 50; Wiesenfeld v. Byrd, 
17 S. C. 106. 



§ 403. Action — when not to abate — No action shall abate by the death, 
marriage, or other disability of a party, or by the transfer of any interest 
therein, if the cause of action survive or continue. In case of death, mar- 
riage, or other disability of a party, the court, on motion, at any time with- 
in one year thereafter, or afterwards, on a supplemental complaint, may 
allow the action to be continued by or against his representative or suc- 
cessor in interest. In case of any other transfer of interest, the action shall 
be continued in the name of the original party, or the court may allow the 
person to whom the transfer is made to be sustituted in the action. 

After a verdict shall be rendered in any action for a wrong, such action 
shall not abate by the death of any party, but the case shall proceed there- 
after in the same manner as in cases where the cause of action now sur- 
vives by law. 

At any time after the death, marriage or other disability of the party 
plaintiff, the court in which action is pending, upon notice to such person 
as it may direct, and upon application of any person aggrieved, may, in 
its discretion, order that the action be deemed abated, unless the same be 
co